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28 Oct 2019 | Commentary

What’s Happening with Mexico’s National Anti-Corruption System? Progress and Continued Challenges at the Federal and State Level

Background 

The following analysis by WOLA Program Associate Gina Hinojosa was published in the 112th edition of the Mexican magazine Brújula Ciudadana.

In September, Transparency International published its 2019 Global Corruption Barometer for Latin America and the Caribbean. Released ten months after Andrés Manuel López Obrador assumed the Mexican presidency, the report cited a dramatic improvement in public perceptions of corruption in Mexico and broad public support for the president’s performance in combating government misconduct. Sixty-one percent of Mexicans surveyed for the study said the government was doing a “good job” combating corruption, compared to 24 percent in 2017, the last year the survey was conducted. The number of Mexicans who said they believed corruption had decreased over the past 12 months was nearly quadruple the number who said the same in the 2017 survey. 

These numbers point to the furor with which Mexicans have responded to López Obrador’s vow to finally root out the deep-seated culture of corruption that embroiled the governments of his predecessors. Indeed, the new president was clearly elected on a mandate to do just that: exit polls show that for the first time, corruption surpassed crime and the economy as the most important issue for voters in the 2018 elections that brought him to power. 

In his first months in office, López Obrador has made bold, symbolic gestures to prove his commitment to creating a more honest and austere government. Perhaps most notably, his Austerity Plan has slashed government expenditures, under the argument that this would put an end to the lavish political privileges traditionally enjoyed by politicians. He has also used his presence in the media and other spaces to send a broad warning to public officials across the nation: corruption will no longer be tolerated from the top.

The López Obrador administration would do well to use its popularity to beef up the National Anti-Corruption System and garner public support for its initiatives. However, despite this landmark opportunity, the new government has yet to demonstrate a commitment to ensuring the System has the support and resources it needs to thrive

It’s clear that these moves have prompted a wave of public confidence in López Obrador’s anti-corruption agenda. But what’s not yet clear is the degree to which the new government will go beyond a strategy of merely leading by example. As WOLA has argued, this administration is in a unique position to take a comprehensive, institution-focused approach to tackling corruption, given that it’s the first government to come to power since the National Anti-Corruption System (Sistema Nacional Anticorrupción, SNA) entered into force in July 2017, during the presidency of Enrique Peña Nieto. 

The SNA is a group of institutions responsible for designing and implementing anti-corruption policy. It’s headed by a board-like Coordinating Committee charged with harmonizing and institutionalizing the country’s previously scattered anti-corruption efforts. Perhaps what is most innovative about this model is the Citizen Participation Committee, a civilian oversight body meant to serve as a bridge between the SNA and civil society. The president of the Citizen Participation Committee serves as the president of the entire System, giving citizens a lead role in the anti-corruption fight. 

The López Obrador administration would do well to use its popularity to beef up the SNA and garner public support for its initiatives. However, despite this landmark opportunity, the new government has yet to demonstrate a commitment to ensuring the System has the support and resources it needs to thrive. One troubling sign is that while the spirit of the SNA is based largely on the premise that civil society organizations and anti-corruption experts are critical to monitoring and evaluating anti-corruption policies, the president frequently criticizes that sector of society, discrediting its role in acting as a counterweight to government institutions. 

While the state-level anti-corruption systems face significant obstacles, they have made significant progress and continue to pick up momentum.

It appears that López Obrador is most likely to support what he can control. The president and his allies in Congress have shown the most openness to engaging with and allocating resources to the Ministry of Public Administration, the only member of the Coordinating Committee that falls under the Executive Branch. The proposed federal budget for 2020 includes a 57 percent increase in funds for that ministry, while funds for other aspects of the System saw substantial reductions (for example, the budget proposal cut funds for the Special Prosecutor’s Office for Combating Corruption by 70 percent). 

Additionally, López Obrador has yet to fulfill his constitutional responsibility to name the 18 anti-corruption magistrates that are supposed to form part of the Federal Tribunal of Administrative Justice. These magistrates are critical to the SNA, as they will have exclusive jurisdiction over grave administrative offenses such as money laundering and embezzlement. The absence of the magistrates is delaying the sanction of dozens of grave corruption crimes. 

Nonetheless, the SNA won’t necessarily languish without López Obrador’s support. While the administration has yet to give all of the institutions that form part of the System the political backing they need to reach their full potential, they have already made important achievements, and they will continue to push forward with their work. Similarly, while the state-level anti-corruption systems face significant obstacles, they have made significant progress and continue to pick up momentum. Some of these recent achievements are highlighted below. 

Increasing Government Transparency and Citizenizing the Fight Against Corruption

The Coordinating Committee’s first major undertaking involved strengthening its capacity to prevent and detect conflicts of interest in government, primarily by creating one standardized form that all public officials must use to declare their assets and interests. The law mandating the nationwide use of the new form, which entered into force on September 23, also requires government institutions to digitize officials’ submissions and make them available to the public. 

These resources are critical to... galvanize citizens to participate in the fight against corruption, hold their elected officials accountable, and make informed decisions on election day.

To centralize the submissions of every public official at all levels of government, the SNA’s Executive Secretariat has launched a Beta version of a publicly-accessible website called the National Digital Platform. Once completed, the platform will also make public any information related to government officials who have been investigated or sanctioned for a criminal or administrative offense. The SNA has yet to issue an estimated completion date for the platform. 

The Ministry of Public Administration recently launched another platform, called Internal and External Corruption Whistleblower Citizens, where citizens can report public officials for acts of corruption, human rights violations, and sexual harassment or assault. In the first 12 days of the platform’s release, it received 172 reports of corruption

These resources are not only critical to strengthening the SNA’s prevention and detection capacities, but they galvanize citizens to participate in the fight against corruption, hold their elected officials accountable, and make informed decisions on election day. 

Investigations Begin to Bear Fruit

Investigations into several emblematic corruption cases from the past are beginning to move forward. This includes the corruption case known as “Estafa Maestra”, involving the diversion of more than USD$192 million worth of government funds through shell companies and public universities during the Peña Nieto administration. It also includes the scandal involving the Brazilian construction conglomerate Odebrecht, which has admitted to paying nearly USD$800 million in bribes to secure public works contracts in countries across Latin America, including some USD$10.5 million to Mexican officials. 

While this progress is certainly welcome, it’s worth noting that the apparent lead in these top investigations is National Prosecutor Alejandro Gertz Manero, rather than the federal anti-corruption prosecutor...

While the former federal Attorney General’s Office (Procuraduría General de la República, PGR) dragged its feet on pressing charges against a single public official implicated in these scandals during the Peña Nieto administration, the new autonomous National Prosecutor’s Office (Fiscalía General de la República, FGR)—which replaced the PGR in December 2018—has begun to move these cases forward. 

The FGR has pressed several charges against Emilio Lozoya, former head of the state-owned oil company PEMEX, who has been accused of accepting bribes from Odebrecht between 2012 and 2014. The charges are related to bribes Lozoya allegedly received from the steel company Altos Hornos de México (AHMSA) in exchange for PEMEX’s purchase of an inoperative fertilizer plant in 2014. In addition, Rosario Robles, former Secretary of Agrarian, Territorial, and Urban Development, has been arrested for her involvement in the Estafa Maestra case.

While this progress is certainly welcome, it’s worth noting that the apparent lead in these top investigations is National Prosecutor Alejandro Gertz Manero, rather than the federal anti-corruption prosecutor, María de la Luz Mijangos Borja. This, despite the fact that Mijangos Borja is the official that represents the National Prosecutor’s Office on the SNA’s Coordinating Committee and has a constitutional mandate to handle federal corruption cases such as these. It’s also worth noting that the López Obrador administration’s proposed 2020 budget for her office, the Special Prosecutor’s Office for Combating Corruption, was slashed to just over USD$1 million.

The FGR hasn’t been alone in investigating these scandals. The charges against Lozoya, Robles, and others involved are largely the result of investigations carried out by the Financial Intelligence Unit (Unidad de Inteligencia Financiera, UIF) within the Ministry of Finance and Public Credit, an office charged with combating money laundering and other financial crimes. However, while the UIF has been collaborating extensively with the SNA in this endeavor, it is not currently an official member of the System. Recently, the López Obrador administration and the president’s party leaders in the Senate have proposed reforming the Constitution in order to give the UIF a permanent seat on the Coordinating Committee. While any effort to reform the System should not be taken lightly, this could be a smart move to strengthen coordination between key players in the fight against corruption. 

The Power of the Citizen Participation Committee

The SNA’s Citizen Participation Committee has been central to bringing the voices of the people to anti-corruption policy. For the first two years of its mandate, this group of five civil society leaders focused largely on designing a National Anti-Corruption Policy that outlines 60 clear policy priorities for combating corruption. In what former Committee President Mariclaire Acosta called “perhaps the most striking and resounding achievement of the Citizen Participation Committee” during her term, the National Anti-Corruption Policy was developed through a series of public consultations held throughout the country to gather input from civil society organizations, academics and experts, public officials, and representatives from the state-level citizen participation committees.

The document was submitted to the Coordinating Committee in December for review, and once approved, it will become national policy. The annex of López Obrador’s National Development Plan for 2019-2024 makes mention of the implementation of the National Anti-Corruption Policy as part of the government’s strategy to combat corruption. 

Additionally, the Citizen Participation Committee has found much of its power in litigation. It has submitted various constitutional challenges (amparos) to Mexican courts to nudge Mexican authorities at different levels of government to fulfill their responsibility to fully and properly implement the SNA.

This includes three challenges regarding the slow and incomplete implementation of the state-level systems as well as the failure of state congresses to provide sufficient funds for the operation of their systems. It also includes a challenge issued in May 2018 against the Senate and then-President Enrique Peña Nieto for failing to move forward with the nominations of the 18 anti-corruption magistrates to the Federal Tribunal of Administrative Justice.

A court upheld the complaint, ruling that the Senate and the president were “failing to comply with their constitutional obligation to fully implement the National Anti-Corruption System.” While movement remains slow to name the magistrates, the ruling forced the government to move forward with the nominations and demonstrated the power that the Citizen Participation Committee can have as a civilian oversight body.

Despite Obstacles, State-Level Efforts Start to Move Forward

The constitutional reform that established the SNA required each of Mexico’s 32 states to create their own state-level anti-corruption systems. Like the SNA, the local systems were supposed to be fully installed by July 2017. While implementation has been slow, almost all of the local systems have now been set up, with a few exceptions: two states have yet to pass at least one of the pieces of legislation necessary to give their systems a legal framework, one state is missing a citizen participation committee, three are missing an anti-corruption prosecutor, and five are missing an executive secretariat. 

What leaves room for hope, though, is that anti-corruption prosecutors have been proactive in banding together to advocate for policy changes that would make them more effective in fulfilling their mandate.

While most systems are now up and running, some challenges remain. State anti-corruption prosecutors, for example, face a specific set of obstacles. Not only are most of their budgets abysmal, but prosecutors say they lack the technical and administrative autonomy to set their own budget priorities, sign collaboration agreements as they see fit, or have a say in which prosecutors and police officers work on their team.

In fact, anti-corruption prosecutors in only three states enjoy complete constitutional autonomy, while the rest must answer to the state attorney general and rely on that office for funds. Additionally, in 13 states, the current anti-corruption prosecutor was nominated directly by the governor or attorney general, rather than with Congressional input or through an open convocatory. As past experience shows, this lack of autonomy leaves prosecutors more susceptible to political influence over sensitive corruption investigations. 

Such victories send the powerful message that the anti-corruption systems are not just a simulation—they’re here to make real change.

What leaves room for hope, though, is that anti-corruption prosecutors have been proactive in banding together to advocate for policy changes that would make them more effective in fulfilling their mandate. In June, special prosecutors from 20 states convened at the National Convention of Anti-Corruption Prosecutors in Mexico City to call attention to the main challenges hindering their work. In addition to budget and autonomy concerns, they cited the lack of a standardized criminal prosecution plan for corruption cases, which they say has fragmented the country’s investigative and prosecutorial framework.

Odracir Espinoza—Sonora’s anti-corruption prosecutor and the president of the National Convention—has announced that he is working with the national Citizen Participation Committee on developing a general law to address each of these concerns. Espinoza’s vision of the law would constitutionalize the autonomy of anti-corruption prosecutors, mandate a minimum budget percentage that must be allocated to the special prosecutor’s offices, and set forth a criminal prosecution plan for corruption crimes. 

The state-level citizen participation committees are also beginning to solidify their work. Committee members in Zacatecas recently presented a constitutional challenge against the nomination of the state superior auditor, a key actor in the anti-corruption system. While the nomination process was supposed to be public and transparent, it was carried out opaquely, without adequate debate. A federal court upheld the challenge, setting an important precedent for citizen participation committees across the country in guaranteeing that those in positions of power to combat corruption are qualified to do so and are committed to the fight. Such victories send the powerful message that the anti-corruption systems are not just a simulation—they’re here to make real change.