Lindita Ciko and Eduardo Rodriguez - Mexico's New Anticorruption Framework, Part II

Mexico’s anticorruption framework is not akin to global anticorruption laws such as the FCPA, the UK Bribery Act and Canada’s CFPOA because it does not have extraterritorial jurisdiction.[1] The anticorruption framework is similar to domestic anti-bribery laws that most countries have had for a long time, but it is heavily influenced by current anticorruption best practices. As such, once implemented, it will be a great indicator of how the country deals with its historical corruption problem and serve as an example in the fight against grand corruption.

As discussed in the previous post, the anticorruption framework was drafted and enacted amidst a series of corruption scandals involving very senior members of government and political parties. A particularly important aspect of this legislation is the grassroots effort—unprecedented in Mexican politics—that shaped the legislative agenda and pressured Congress to enact the measure. Specifically, one of the seven laws in the framework, the General Law of Administrative Responsibilities (Ley General de Responsabilidades Administrativas, “LGRA”; also known as “Ley 3 de 3” or “Law 3 out of 3”), was drafted and presented to Congress by civil society groups[2] through a mechanism called a “citizens’ initiative,” which obliges Congress to discuss a bill presented by the public when backed by verified signatures of 0.13 % of registered voters.[3]  The name of the bill is derived from the three obligations it presented to public officials in order for the public to hold them accountable: a declaration of income and properties before and during their public appointment; a declaration of potential conflicts of interest; and, proof of annual payment of taxes. As enacted, some of the aforementioned requirements were scaled back significantly; mainly, the three declarations will not be filed publicly due to privacy concerns. The LGRA entered into force on June 19.

Prior to the enactment of the anticorruption framework last June, Mexico lacked a comprehensive anticorruption regime. A number of provisions addressing corruption were scattered throughout the federal penal code and other laws, including the recently enacted Federal Anti-Corruption Law on Public Procurement and the Federal Law of Administrative Accountability of Public Officials, both of which were replaced by the laws of the national anticorruption framework. [4] Additionally, coordination between the federal and state levels in this area was absent and enforcement was a challenge. The anticorruption framework addresses these two issues by creating a comprehensive, national anticorruption system and outlining the role and obligations of government institutions with respect to enforcement.

The anticorruption framework, through Articles 65-72 of the LGRA, imposes the following obligations and civil penalties to private parties and public servants:

Private entities and individuals:

Proscribed conduct:

  • Bribery: Promise, offer or give undue benefits to public servants.
  • Wrongful participation on one’s own behalf or on behalf of a third party in proceedings from which they are barred
  • Use influence, economic or political power, real or fictitious, for the purpose of obtaining a benefit or advantage from a public servant
  • Submit false or forged information for the purpose of obtaining an authorization, a benefit, or advantage.
  • Collusion in federal, local or municipal public contracting
  • Hire former public servants who are served during the previous year who possess privileged information directly acquired by reason of their employment or position in public service, and directly allow the contractor to benefit in the market or place him or her in an advantageous situation.
  • Improper use of public resources whether material, human or financial.

The law places special emphasis on candidates for elected positions, members of electoral campaigns or transition teams between public sector administrations, and leaders of public sector unions. Such persons are prohibited from demanding, requesting, accepting, receiving or intending to receive any of the additional benefits, either for themselves, for their election campaign or for their spouse, blood relatives, civil relatives or for third persons with whom they have professional, business or employmnet relationships, or for partners, or companies of which the public servant or persons mentioned above is part, in exchange for granting or offering an undue advantage in the future, if he or she becomes a public servant or elected official.

Penalties:

Individuals:

  • Monetary sanctions up to twice the amounts of the profits obtained, and in case of not having obtained any profit, 100 to 150 thousand times the daily value of the Unidad de Medida de Actualización[5] (75.49 MXN for 2017)
  • Temporary debarement from participating in acquisitions, leases, services or public works, for a period between three months and eight years.
  • Compensation for damages caused to the federal, local or municipal Public Treasury.

Private Entities:

  • Monetary sanctions up to twice the amount of the profits obtained, and in the case that no profit was obtained, 1000 to 1 million 500 thousand times the daily value of the Unidad de Medida de Actualización[6] (75.49 MXN for 2017).
  • Temporary debarement from participating in acquisitions, leases, services or public works, for aperiod between three months and ten years.
  • Suspension of activities for a period between three months and three years.
  • Compensation for damages caused to the federal, local or municipal Public Treasury.
  • Dissolution of the respective entity.

Public servants:

Obligations:

  •  Publish the following three declarations
    • 1) asset declarations 
    • 2) declarations of possible conflicts of interest, and
    • 3) tax returns
  • Denounce acts and omissions that they notice in the exercise of their functions that may constitute administrative misconduct.
  • Refrain from demanding, accepting, obtaining or seeking to obtain, directly or through third parties, any benefits not included in his or her remuneration as public servants, in order to fulfill his or her public duties.
  • Refrain from authorizing, soliciting or performing acts for use or appropriation by them or their spouse, blood relatives, civil relatives or for third parties with whom you have professional, employment or business relationships, or for partners or companies of which they form part.
  • Refrain from using privileged information, obtained on the basis of their functions, for private advantage or benefit.

Penalties:

  • For non-serious administrative misconduct:
    •  Public or private warning
    • Suspension
    • Removal from employment or position
    • Temporary debarement from working or serving in the public service and from participating in acquisitions, leases, services or public works.
  • For serious administrative offenses:
    • Suspension
    • Dismissal
    • Monetary penalties (up to two times the profit obtained)
    • Temporary debarment from working or serving in the public service and from participating in acquisitions, leases, services or public works.

The penal code sets out the following criminal penalties applicable to private entities and individuals and public servants:

  • Corruption: 1 to 20 years in prison.
  • Unlawful use of public office: 1 to 7 years imprisonment.
  • Abuse of authority: 1 to 9 years in prison.
  • Collusion (public servants): 2 to 7 years in prison.
  • Unlawful use of power and authority: 6 months to 12 years imprisonment.
  • Forgery and obstruction of justice by a private party (contractor, licensee, assignee): 3 months to 9 years in prison.
  • Extortion: 3 months to 2 years in prison.
  • Intimidation so that no complaint or information is submitted in the alleged commission of a crime: 2 to 9 years in prison.
  • Illegally granting contracts, concessions, permits, licenses, authorizations, etc. as a public servant: 3 months to 12 years in prison.
  • Influence peddling: 2 to 6 years in prison.
  • Bribery: 3 months to 14 years in prison.
  • Graft: 3 months to 14 years in prison.
  • Illegal enrichment: 3 months to 14 years in prison.
  • Offenses against the administration of justice: 3 to 10 years.

The law outlines a number of mitigating factors that include the seriousness of the offence, voluntary disclosure of the misconduct and cooperation with the investigation.  The law incentivizes voluntary disclosure by reducing fines and the period of debarment, provided however, that the disclosure is made prior to the initiation of the investigation.
The framework establishes a mechanism similar to the FCPA’s deferred prosecution agreement called a consent decree, which if complied with by the offender, may suspend and even extinguish criminal liability.

In the post that follows, I will review the various steps in the implementation of the anticorruption framework and their status as framework enters into force. The effectiveness of Mexico’s national anticorruption framework will be evident as its various institutions get up and running. 

 


[1] Mexico ratified the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions amending it Criminal Code to establish the offence of bribing a foreign public official in 1999.

[2] More information on the Ley 3 de 3 citizen’s initiative is available at: http://ley3de3.mx/es/quienes-somos/.

[3] The 2014 reform allowing outlining the procedures governing citizens’ initiatives is available here: http://www.dof.gob.mx/nota_detalle.php?codigo=5345226&fecha=20/05/2014.

[4] The seven laws of the National Anticorruption Framework (Sistema Nacional Anticorrupción, “SNA”) are the following:

1. The General Law of the National Anticorruption framework (Ley General del Sistema Nacional Anticorrupción, “LSNA”)

2. The Organic Law of the Administrative Justice Federal Court (Ley Orgánica del Tribunal Federal de Justicia Administrativa, “LOTFJA”)

3. The General Law of Administrative Responsibilities (Ley General de Responsabilidades Administrativas, “LGRA”)

4. The Organic Law of the Attorney General's Office (Ley Orgánica de la Fiscalía General de la República, "LOFGR")

5. The Organic Law of the Federal Public Administration (Ley Orgánica de la Administración Pública Federal, “LOAPF”)

6. Articles 217, 217 Bis, 221, 222, and 224 of the Federal Penal Code (Código Penal Federal, “CPF”)

7. Articles 10, 55-66 of The Law on Audit and Accountability of the Federation (Ley de Fiscalización y Rendición de Cuentas de la Federación, “LFRCF”)

[5] A monetary reference unit calculated by the Mexican government for the payment of liabilities.

[6] A monetary reference unit calculated by the  Mexican government for the payment of liabilities.

Lindita Ciko - Mexico's New Anticorruption Framework, Part I

I took the photograph above about a week ago while walking down Paseo de la Reforma near Mexico City’s stock exchange. The ramshackle bus pictured, unlike the shiny new double decker “Touribuses” circling the city center, takes visitors on a “Corruptour”—a tour of public works in Mexico’s capital plagued by allegations of corruption—organized by civil society organizations. The stops of the Corruptour made headlines at some point, but the outcries soon died down.

It was my first time spotting the bus which seemed to pass unnoticed by office workers out on their lunch break. When I got back to my office, I looked up the Corruptour whose route includes the infamous “Casa Blanca” of current president Enrique Peña Nieto, the Estela de Luz monument that exceeded its initial budget by $80,000,000 MXN (4.2 million USD) paid to contractors with ties to the government, and the $4.2 billion MXN (220.2 million USD) Senate building. To put these numbers into perspective, the minimum wage in Mexico City for 2017 is 80.04 MXN or 4.2 USD per day. The average adjusted household income for 2016 was 12,806 USD.[1]

Corruption is big in Mexico. It is part of the citizenry’s quotidian life. Sometimes it causes outcry, but usually, it is dismissed with a shrug. In a 2010 report, the Center of Social Studies and Public opinion (Centro de Estudios Sociales y de Opinión Pública) identified 200 million acts of corruption in administrative procedures and services offered by the various levels of government and private parties in Mexico.[2] In 2015, corruption cost Mexico 10% of its GDP.[3] In 2016, despite a series of reforms, Mexico lost 5 points in Transparency International’s corruption perceptions index, scoring 30/100, well below the 44/100 average for the region.

The current government has taken important steps to combat corruption; however the effect of these measures is left to be seen. The most recent and most radical of those measures includes the new anticorruption system (implementing the 2015 Constitutional reform on anticorruption) enacted on July 18, 2016. This new legal framework, comprised by the General Law for the National Anticorruption System, the Organic Law of the Federal Tribunal for Administrative Justice and the General Law for Administrative Responsibility as well as amendments to the Federal Criminal Code and the Organic Law of the Federal Public Administration, shall establish binding guidelines for all levels of government (executive, legislative and judicial branches, either federal or local as well as the public officials of autonomous entities such as the Federal Economic Competition Commission, Energy Regulatory Commission, National Hydrocarbons Commission and the Central Bank) and personnel of PEMEX and CFE (except for their board members) that identify, prevent and sanction acts of corruption by public officials and private parties. The most important elements of the framework include:

  • The establishment a Coordination Committee, headed by a representative of a Citizen Participation Committee, which shall design and implement anti-corruption policies.
  • The establishment of a Special Anti-corruption Prosecutor.
  • The establishment of various measures targeting corruption by public officials and requirements for greater disclosure of assets, identification of conflict of interest and other private interests by public officials. As will be discussed in future posts, the initial draft of the law was broader and applied to any entity that received government funding. As passed, the aforementioned requirements only apply to public officials.
  • Allowing the Federal Superior Audit Office to audit the use of federal funds by the different levels of government.
  • Tougher sanctions under the jurisdiction of the Federal Tribunal for Administrative Justice.

The new anticorruption framework brings Mexico closer to other countries with wide-sweeping anticorruption legislation.  However, as these measures are new, time will show their effectiveness. The second part of this series will examine the new Mexican anticorruption system in greater detail and isolate the challenges it will face in combating corruption, especially grand corruption.


[1] http://www.proceso.com.mx/442338/el-ingreso-familiar-de-los-mexicanos-muy-por-debajo-del-promedio-ocde

[2] Centro de Estudios Sociales y de Opinión Pública, COMUNICADO DE PRENSA

En contexto No. 61, Transparencia y corrupción en México. Indicadores y legislación 15 de mayo de 2016

CESOP/CVyD/017/16.

[3]

 

 

Hon. Jill A. Schuker - Why We Need an International Anti-Corruption Court

Not a day passes without a spate of troubling, documented reports about how grand corruption is undermining democratic governance. More attention is being paid to this scourge, but the global reality is that we are still without the means to effectively uproot corruption—especially high-level, grand corruption—or confidently punish it once it is uncovered.

More and better official mechanisms are in place to identify and monitor kleptocracy. Citizens from Romania to Brazil to Nigeria to Malaysia, to name only a few, are demanding change and prosecution of corrupt officials—including impeachment. Monitoring mechanisms are more widespread and dogged.

Despite the progress, the theft of citizens’ ability to have confidence in their leaders to provide “clean” and honest government is all-too-common phenomenon. We often acknowledge the fact of high-level government corruption, yet do little about the systemic undermining that follows in its wake. As a result, citizens are denied a financial and political system that works in their interest.

Some are fighting to rectify this outrageous state of affairs. Latin American countries have been especially active in their pursuit of corrupt officials, and have worked across state lines to do so. But there is a pervasive sense of helplessness even among those most aware of the crisis. Naming and shaming is a powerful tool, but it also has no teeth to enforce. And some of those most active in the fight have had to leave their countries because of threats and imminent danger.

The United Nations Convention Against Corruption (UNCAC) and the Organization for Economic Cooperation and Development’s (OECD) Anti-Bribery Convention are bulwarks to fight the illness and in some cases may even prevent it, but they are not the universal cure. Greed and a sense of inertia are powerful enemies. Legislative and internal legal solutions take time and often face formidable obstacles. Complacency is one of them. And those who control the levers of government are able to suppress effective responses to their own monumental misdeeds. The system feeds on itself.

The Foreign Corrupt Practices Act (FCPA) passed in the United States and the British Bribery Act are among the strongest national barriers to corruption but they were not designed as blueprints to attack the issue at the highest levels of government where the negative consequences are the most egregious. While no country is immune to misdeeds, often those most in need of remedy are those who do the least about it—Haiti under the Duvaliers, or Angola under its present and long-time leadership, for example. The country becomes the “ruling” family’s piggybank.

And this is where the concept of an International Anti-Corruption Court (IACC) inserts itself and both demands serious consideration. The arguments against the feasibility of such a court are well-known—sovereignty issues most specifically—but as we have seen perhaps most recently with the Paris Climate Agreement, international accord can happen and change the paradigm of how countries behave and act and as a result better the lives of their citizens.

An IACC is not an easy “get” but it is worthy of discourse and serious deliberation as to how such an entity could work and provide an effective mechanism for protecting citizen interests and livelihoods against political and governmental leaders who “talk the talk” but do not “walk the walk.”

Integrity Initiatives International (III) is committed to exploring how to promulgate an IACC and to see what effective enforcement steps and mechanisms can be put into place along the road to that goal. The engagement of young people committed to the transparent and proud futures for their countries and themselves; the work of legal, political and policy officials and advocates who believe in the importance of transparent government, democratic governance; and honorable leaders all have a role to play.

An IACC may seem like a far reach, but so were some of our finest moments in world history, born out of what seems impossible.

Global leadership, civil society leadership, strategic and tactical planning, and a vision of what an International Anti-Corruption Court could do in practice as well as on paper does not have to be just an idea. Entities such as the National Endowment for Democracy, Global Financial Integrity, Transparency International, the International Bar Association, and other international and regional institutions all view corruption as a major cause of global and national instability. Former Secretary of State John Kerry stated at the global anti-corruption seminar in London last year that“culture can adapt to modernity and to a global standard that requires something more” than the acceptance of an illness that “tears at the entire fabric of a society.”

Integrity Initiatives International –with its international board of legal, policy and legislative leaders—is created to foster the consideration and development of an International Anti-Corruption Court—not because we are naïve or have undue expectations, but because it is needed and there is a new global awakening to the dangers corruption imposes on us all. 

Learn more about Jill Schuker.

Prof. Robert I. Rotberg - Why an International Anti-Corruption Court?

Because corrupt countries usually endure corrupt judiciaries (South Africa and Brazil are exceptions), and because prosecuting perpetrators of venal or grand corruption is often an exercise in futility within corrupted jurisdictions, some loftier or transcending method of bringing high-level miscreants to justice could be salutary. The establishment of an International Anti-Corruption Court (IACC) to fulfill those needs thus makes eminently good sense. It is an idea whose time has finally come.

An IACC would, by arresting, trying, and punishing corrupt high-level offenders across the globe, help to reduce the kinds of impunity that prevail within corrupt nations, and correspondingly deter venal corruption. The existence of such a new international institution would bring increased attention and notoriety to the excesses of corrupt endeavors and to kleptocracy more generally. It would also confer international legitimacy (presumably via support from the UN General Assembly) on anticorruption efforts that many national court systems often lack. Furthermore, an IACC could receive confidential reports from NGOs, individuals, whistleblowers, etc., within corrupt countries in a manner that is often unavailable or dangerous within jurisdictions awash with corrupt dealings.

As conceived, the IACC would focus its energies on venal or grand corruption—the large-scale theft or conversion of public riches to private gain. It would not focus on the equally insidious and destructive petty corruption that bedevils citizens almost everywhere, especially in the polities of the developing world.

The new court would investigate and seek to prosecute, for example, heads of state who arrogantly preside over schemes to enrich themselves, their families and lineages, and their cronies. It would be less concerned about pursuing workers in motor vehicle offices, say, who provide fake licenses for a fee, or policemen who accept bribes at roadblocks. Such a court’s main targets would be the Eduardo dos Santoses, Robert Mugabes, and Joseph Kabilas of the developing world – presidents whose kleptocratic avarice knows no bounds and whose judiciaries are thoroughly under executive control.  The court might also be invited to play a role in supporting a Malawi or a Honduras where local prosecutorial resources are limited.  Or a country such as Brazil could even request the support and even-handed impartiality of the new court when its own court processes had become too politicized.

The IACC would be composed of internationally approved and internationally experienced judges. They would not be beholden to national political elites for appointment or for their salaries. (Who would pay for the IACC is an open, and difficult, question.) They would draw on the expertise of the kinds and numbers of investigative and prosecutorial staff that most developing countries lack. Fragile and poorer places in Africa and Asia often find it difficult forensically to pursue the tortuous trails of corrupt politicians, especially those with highly placed friends. Most smaller countries also lack the means to track the shifting of ill-gotten funds across oceans and continents. The proposed court, to function well, would need its own regular leakers of information similar to that brought to light in the Panama Papers.

The world order’s need for an IACC, and the complementary benefit that an IACC could bring to help uplift millions of citizens who are regularly deprived of developmental advances by corruption and corrupt leaders was first articulated by Judge Mark L. Wolf in 2014. Subsequently, that idea has been embraced by jurists, scholars, human rights advocates, and UN officials internationally, as well as by prominent global NGOs, and by officials from such nations as Nigeria and Ukraine. An NGO, the International Integrity Initiative (of which I am a director and supporter), has been established to promote and bring into being an IACC. But no matter how innovative and timely an IACC may appear to be, a successful launch of an IACC will require substantial support from a range of major and minor world powers—and ultimately from a groundswell of influential public opinion and from an authorizing body such as the UN General Assembly. That approach follows the successful establishment of such important normative-shifting initiatives as the International Campaign to Ban Landmines and the adoption of the Responsibility to Protect initiative by the UN General Assembly in 2005.

The International Criminal Court (ICC) is obviously an analogue. Many of its procedures might be embodied in the statutes or protocols that eventually establish an IACC. One, complementarity, seems just as fundamental to the IACC’s function as it is to the ICC. That is, the IACC would attempt to assume jurisdiction only when and where the corrupt countries themselves refused or otherwise forfeited their rights as the original jurisdiction to investigate and then to prosecute malefactors. (The nations that never ratified the Rome Statute that created the ICC are immune from its attention except when specifically authorized by the UN Security Council.) The IACC would need some similar method of imposing itself on those countries failing to ratify the IACC’s enabling statute and thus barring its investigations.

Exactly how all of these issues are addressed will help to determine the ultimate success of the IACC. There is no doubt, however, that an IACC is much needed, and that its existence and its ability to punish corrupt offenders, plus the threat of so doing, will help to chill corrupt activity worldwide.

With some added fresh material, this blog post is adapted from a section in Robert I. Rotberg, The Corruption Cure: How Leaders and Citizens Can Combat Graft(Princeton, 2017).

Prof. Robert I. Rotberg is the Founding Director of the Harvard Kennedy School’s Program on Intrastate Conflict, President Emeritus of the World Peace Foundation, Fellow of the American Academy of Arts and Sciences, and sometime Academic Vice-President of Tufts University and President of Lafayette College. He currently serves as the Fulbright Distinguished Professor of International Relations at the University of Sao Paulo. He has published a number of books and articles. His latest, The Corruption Cure: How Leaders and Citizens Can Combat Graft, is published by Princeton University Press in early 2017.

Justice Richard Goldstone - Could an International Anti-Corruption Court Help?

As globalization and economic opportunity grow, so too do the means and opportunity for corruption. There is no country on earth that is immune from this disease. North and south, east and west, developed and developing countries - all are infected by the damage inflicted by corruption on millions of victims. Corruption comes at all levels, both within and outside government.

Thankfully, there is no shortage of laws, domestic and international, that are designed to prevent and deter corruption. No less than 181 countries are parties to the 2003 United Nations Convention against Corruption, and there are few nations that do not have laws that outlaw corruption.

What then explains the growing incidence of corruption throughout the globe? I would suggest that a major reason is the absence or inefficiency of law enforcement. Grand corruption, which is perpetrated by leaders of far too many nations, is hardly ever investigated, and the perpetrators remain above the law. They are rarely investigated by their own domestic courts and there is no international or trans-national court with jurisdiction over them or the crimes they commit.

It cannot be doubted that the crime rate in any country has a direct relationship with the efficiency of the justice and police system. The more efficient the system, the lower the crime rate and, conversely, the less efficient, the higher the crime rate. I would suggest that the same correlation applies in the global community. If there were an efficient International Anti-Corruption Court, at least some would-be perpetrators of grand corruption would be deterred from stealing many millions of dollars from their own citizens.

The major victims of corruption are the poorest members of their societies. I would suggest that a meaningful way to recognize their victimhood and to protect them from the scourge of corruption is to increase the efficiency of international justice relating to the crime of grand corruption.

It was for similar reasons that 124 nations ratified the Rome Statute for the International Criminal Court (ICC). It has jurisdiction only over the most serious war crimes committed within the territory or by nationals of states party to the statute. Its problems are manifest, well publicized, and much debated. A number of leaders are nervous at the prospect of being brought before the ICC and have opposed ratification of the Rome Statute. Some who have joined the ICC attempt to leave it when war crimes are committed in their own countries. This is certainly the position of Burundi and, until he was recently replaced as head of state of The Gambia, the motivation of former President Yahya Jammeh in giving notice to withdraw from the Rome Statute.

An International Anti-Corruption Court with jurisdiction over the most serious instances of grand corruption would surely act as a deterrent in some cases and would certainly increase the attention of the public to the endemic incidence of corruption in so many countries around the world. It deserves the support of all people who have regard for the millions of victims of corruption.

Richard J. Goldstone was a judge in South Africa for 23 years, the last nine as a Justice of the Constitutional Court. Since retiring from the bench he has taught as a visiting professor in a number of United States Law Schools. From August 1994 to September 1996 he was the chief prosecutor of the United Nations International Criminal Tribunals for the former Yugoslavia and Rwanda. He is an honorary Bencher of the Inner Temple, London and an honorary fellow of St. John’s College, Cambridge. He is an honorary member of the Association of the Bar of the City of New York and a foreign member of the American Academy of Arts and Sciences. He is an honorary life member of the International Bar Association and Honorary President of its Human Rights Institute.

Judge Claudia Escobar - Fighting Corruption from the Judiciary

Many people in countries around the world are struggling to fight corruption. The massive anti-corruption protests of the last few years in Latin America and several other countries around the world, such as Romania, South Africa, Guatemala, Ukraine, and Kenya, are indicative of the critical situation that many societies are facing. 

We are starting to understand that corruption is not just a matter of wrongdoing by governmental leaders in conspiracy with the private sector or criminal groups, but it also relates to development, access to health, education, and justice.

Even though corruption is a behavior or a practice that can happen anywhere around the globe, it is an especially serious threat in some developing countries, where democracy, human rights, and the rule of law are not respected. In these countries, where corruption has become systematic, government officials organize to make illegal profits from their activities, and the institutions established to guarantee peace and security are controlled by the mafia itself, which further promotes corruption. In such places, citizens that want to fight corruption face great risk, and they put their lives in danger because any charge or denunciation against corruption means a threat to the status quo that the powerful elites defend.

I have experienced the consequences of speaking up about corruption firsthand in my home country of Guatemala. As a judge, I have always been extremely protective of judicial independence. In 2014, during the process of election for judges in the Court of Appeals, the former president of Congress conditioned my election in exchange for a resolution to favor the vice-president at the time. I knew I had to press charges. I also knew that the election of judges was tainted and that organized crime was involved.  Of course, I was afraid of the consequences.  Immediately after I denounced this wrongdoing, the president, the vice president, and the Congressman that I denounced started a campaign to intimidate and discredit me professionally.  The judges that were elected for the Supreme Court threatened to initiate a process of sedition charges against me.  These same officials are currently facing trials for corruption. The United States is asking for the vice president to be extradited for drug smuggling on its territory.  Recently, the head of Congress was convicted to 13 years in prison for bribery and influence peddling. This was possible only because in 2007 the United Nations established the International Commission against Impunity in Guatemala (CICIG).  But there is still much to be done to strengthen the judiciary in Guatemala. 

We all know that in a democratic republic where the separation of powers work properly, checks and balances are in place and the judiciary will prosecute illegal activities that the ruler or politicians try to promote. This has happened in Brazil with the case of Lava Jato and in Chile with the politician scandals or Spain in the Nóos case, for example. But if the judiciary is weakened or has been infiltrated by corrupt politicians, there is little that can be done to stop corruption, and impunity grows. When citizens do not have the tools to fight corruption, the risk of kleptocracy skyrockets. 

Another problem of corruption is that it is a disease that spreads to other sectors of society and to other countries, such as in the Odebrecht case or the Panamá Papers case. That is why the international community must pay attention to this problem, because it seems to be growing. 

If a strong, independent and impartial judiciary is a needed tool to fight corruption, we have to make sure that the judges have enough power, resources, and capacity to rein in the other branches of government. This is almost impossible to do in a society where corruption is the norm. This problem needs to be addressed through international organizations.

In the last 10 years, various international programs have been implemented to promote more transparency and reduce corruption and impunity.  One of these programs initiated by the United Nations is the International Commission against Impunity in Guatemala (CICIG).  This commission has been able to prosecute high officials in power including the president, vice president, head of Congress, and other powerful army officials and businessmen. Another effort that has been implemented by the Organization of American States is the Mission to Support the Fight against Corruption and Impunity in Honduras (MACCHI), which is providing support to the Honduran government to build stronger institutions. These programs are crucial not only because they help to prosecute individuals that are involved in corruption cases, but also because they obtain criminal convictions and sentences. In order to do these things, the judiciary also needs to be independent.  

It will be important to seriously analyze how a regional or international organization can help develop stronger judicial systems. 

Corruption is an activity that goes beyond borders and sometimes has more resources than the government, especially in developing states. We need to think out of the box and ask ourselves whether an International Anti-Corruption Court, similar to other international courts such as the Inter-American Court of Human Rights, the European Court of Human Rights, or the International Criminal Court, can address this problem. 

About Judge Claudia Escobar: 

Having grown up in a country marked by impunity, corruption, and violence, Claudia Escobar has dedicated her life to working for the respect of the law and for the promotion of justice, with the conviction that a strong judicial system is the vehicle to build a true “State of Law,” which can bring peace, freedom, and prosperity to her home country of Guatemala. Escobar, a judge, is also a dedicated professor and has taught at different universities, and she was the coordinator of the master’s degree in corporate law at the Universidad Rafael Landívar for more than five years.