Government and OAS Announce Technical Round Table for a CICIES Subordinate to the Executive Branch
On the eve of his first one hundred days in the presidency, Nayib Bukele did not install a Cicies, but instead announced with the OAS a "technical round table" that should evolve into the creation of an anti-corruption commission. Far from what Bukele and Félix Ulloa promised in the campaign, the future Cicies introduced by the administration and the OAS will be a dependent of the executive branch, and will investigate only the institutions affiliated with the presidency.
On Friday, September 6, the Salvadoran government and the Organization of American States (OAS) announced the inauguration of a technical round table that will eventually create an anti-corruption agency already termed "Cicies" by the administration, in reference to the Cicig that operated in Guatemala throughout the last decade. The entity announced in El Salvador, however, will not have the scope of its Guatemalan counterpart. As announced, it will be limited to scrutinizing, preventing and reporting acts of corruption in the 105 offices affiliated with the presidency.
During the electoral campaign and within his government platform, Nayib Bukele promised an International Commission against Corruption and Impunity (Cicies) that would emulate the work of the International Commission against Corruption and Impunity in Guatemala (Cicig,) and be supported by both the OAS and the United Nations (UN.) However, despite the applause of figures in Washington like Congressman Eliot Engle, who on Friday celebrated the joint OAS-UN involvement, the participation of the UN is in fact not clear.
According to earlier documents in which the administration announced its Cicies plan before assuming office, distributed between March and May of this year, the OAS and the UN were to distribute the operative areas of the proposed El Salvador mission between them. For example, according to an organizational flow chart, the UN was to oversee the areas of "prevention" and "recovery," while the OAS would chaperon "institutional strengthening" and "observation." The plan's designers told El Faro that the UN had more experience in criminal investigations and that Cicies should take advantage of that. However, at the press conference, the UN was not mentioned.
Hours before the announcement, the office of the UN in El Salvador posted a reaction on social media. "The United Nations welcomes the efforts of #ElSalvador to eradicate corruption. In the coming days, the Secretary General will meet with the government to review the proposal and the details of the request for support," read a tweet published by @ONUElSalvador. It referred to a letter sent two weeks ago from the Salvadoran government to the UN, requesting help to build the international mission.
Vice President Félix Ulloa, who had been appointed to elaborate the Cicies plan by President Bukele, did not speak at the inaugural press conference. Instead, he responded to the UN's offer with a Twitter post. "We appreciate the UN's receptivity to our request. We hope to meet soon with the Sec. Gen. in New York," Ulloa wrote.
Among the questions raised by the plan to install a Cicies is why El Salvador took nearly six months to send the UN a request for support, because the draft was prepared in February, according to Paul Steiner, who had been among the officials responsible for the anti-corruption axis of Plan Cuscatlán and the current president of Conamype, the National Commission of Small Companies and attached to the Ministry of Economy.
Without an agreement with the UN in hand, President Bukele said Friday that, "the Cicies is up and running starting today." But the announcement only described the establishment of a technical round table with a first objective of creating a new agency that will audit only the executive branch. That round table, as announced by the president, will also seek inter-institutional support from the Attorney General's Office, the Court of Auditors and the judicial branch, in order to convert possible corruption cases detected in the executive into judicial investigations. Over the long term, the new body could seek rapprochements with other government entities, including the Legislative Assembly, to extend the scope of the Cicies beyond the executive branch.
Luis Porto, the chief of the technical round table and special envoy of the OAS Secretary General Luis Almagro, helped Bukele outline the components of the new commission in general terms. But the model described is far from the projects on which it is supposedly based: the Cicig and the Support Mission Against Corruption and Impunity in Honduras, or Maccih. Given the independence and depth of those two commission's powers, the contrast with the Cicies presented on Friday leaves more questions than answers.
The Cicies' design appoints the executive branch -- and its 105 dependencies -- with auditing itself, Bukele explained, leaving it without the autonomous character and guarantees of independence that characterized the now-defunct Cicig and the Maccih, which still operates in Honduras. These agencies do not depend on any state body. Their staffs are composed of some people born in the countries where the commissions are located, but are mostly foreign technical personnel.
In the case of the Cicies, Porto explained, foreign personnel will arrive at some point, but for now it is up to the state institutions in which corruption exists to monitor themselves. Bukele seconded this idea. "The government has the power to audit all institutions and departments that are under its responsibility, including the presidency and the secret budget. And we can audit all of this without asking permission from anyone," he said.
Broadly speaking, and lacking additional information about the final design of Cicies, the institution presented by Bukele and the OAS will do work similar to that of the former Secretariat of Transparency under both FMLN administrations, except this new entity will have OAS counsel and accompaniment.
The former Secretariat began as an undersecretariat in the government of Mauricio Funes (2009-2014), and later coordinated the hunt for irregularities committed during the Arena governments (1989-2009). It also assumed the documentation of corruption cases and presented them to the Attorney General, among other tasks.
However, in 10 years of management, the FMLN did very little to investigate the actions of on-duty officials, or of the presidency -- for example, in the irregular hiring of publicity and security services. Nor was the party able to detect or denounce the siphoning of funds from the reserved budget during the administration of Antonio Saca, a former president convicted of corruption for embezzling $300 million from the presidency's reserve account. Mauricio Funes, the first leftist president, also stands accused of pilfering $351 million from the account.
According to Bukele, the future commission will be able to audit the secret budget. But in Friday's press conference, and in the subsequent press releases from the government and the OAS, it isn't clear how the Cicies will overcome an obstacle the presidency itself has placed on it: On June 2, Bukele classified the expenditures made by the State Intelligence Agency as a state secret. The last three administrations relied on the same argument to hide the discretionary use of public funds.
A police force with the power of an Attorney General
Neither Bukele nor the OAS have specified key aspects, including who will direct the Cicies, the source of its financing or the mechanism by which it will collaborate with the Attorney General's office, an institution that has been key to the similar commission models in Guatemala and Honduras.
The Guatemalan entity was supervised by a commissioner appointed by the UN Secretary General. The Cicig was able to initiate proceedings to investigate corruption cases, and at a certain point it presented each case to the Guatemalan Attorney General for criminal prosecution in the courts. The Cicig and the Attorney General's office together strengthened the investigations and carried the cases throughout the various stages of the judicial process. "The Cicig is like a breastplate that has been able to protect the office of the Attorney General of Guatemala," said the last commissioner to lead the Guatemalan commission, former Colombian judge Iván Velásquez, in 2015.
In El Salvador, it is the Attorney General who is responsible, by constitutional mandate, to direct criminal investigations. But the president rarely mentioned him in the press conference. Porto, the OAS delegate, only said that the role of the future commission will be to strengthen weakened institutions and that success would be measured in ten years or fewer. "Success would be if this Cicies in ten years no longer exists in El Salvador," he said.
The Attorney General's office was the notable absentee of the administration's press conference. Attorney General Raúl Melara has repeatedly said that his institution has to prosecute crime "with or without Cicies." On Friday, Bukele was emphatic in announcing the creation of a "Special Anti-Corruption Police," in the ranks of the National Civilian Police (PNC.)
"If the police [force] can investigate who stole a chicken, it can investigate white collar crimes," the President said, referring to an institution whose most optimistic diagnoses depict it as a saturated organization without sufficient resources to prevent or combat all expressions of crime, especially extortion, gang violence and homicides.
Additionally, the Salvadoran police report directly to the presidency, which could call into question the independence of their investigations. According to Bukele, the guarantee that the new police unit will not be used to carry out political persecution is his own word.
Together with the new unit, Bukele also announced that the Ministry of Finance will play a decisive role, not only in scrutinizing the other offices of the executive branch, but also in investigating crimes related to tax avoidance and evasion, money laundering, and suspicious operations committed by companies and individuals. The President also highlighted the role of the Office of Customs in preventing and denouncing smuggling and drug trafficking. Neither Bukele nor the OAS have specified what is new about the two agencies' duties, which are already required by law to detect irregularities in their respective spheres and report them to the Attorney General.
According to the administration, the future Cicies will help obtain jail sentences against corrupt individuals and influences, but it did not say how. Bukele simply said the Cicies "will strengthen" the accusations initiated by state agencies. A joint complaint statute does exist in Salvadoran law, in Article 107 of the Criminal Procedure Code, allowing individuals or organizations to work together with the Attorney General's office to present cases before a judge. "State institutions are not good at prosecutions. One of the things Cicies will seek is to achieve sentences," Bukele said.
Guatemala's Cicig -- which ended its mandate on September 3 -- was funded by international donors, as is Honduras' Maccih. However, Bukele argues that various government institutions could help finance Cicies through inter-institutional cooperation agreements.
These agreements will also seek to strengthen the daily operations of institutions. "Not only will we go after corrupt individuals, but Cicies will also modify systems and ways of working so corrupt acts are not repeated," he said.
A Cicies without a start date
"The Cicies is up," celebrated Bukele. Luis Porto clarified that the commission will gradually come into full operation.
During the week of September 9th, Porto said, an advance mission will come to El Salvador to resolve administrative issues like infrastructure, equipment and security. In mid-September, they'll begin trying to reach anti-corruption agreements with state institutions. Porto said a specialist will also come to conduct awareness-raising campaigns designed for society. "We'll advance gradually, until we're able to bring investigators who work with the institutions," said Porto.
It is not clear when the investigators will arrive. Preliminary documents released between March and June of 2019 announcing the plan revealed that the investigation of complaints and cases would kick off in the third phase, which would begin in September 2021. In Friday's press conference, there was no mention of this subject.
Before the arrival of the investigators, according to the documents to which El Faro had access, there will be a preliminary stage, consisting of the signing of agreements with the OAS and the UN, and two initial phases.
Paul Steiner, who was an advisor to Vice President Félix Ulloa during the election campaign and one of the main designers of the anti-corruption platform of the Cuscatlán Plan, said the initial phase was supposed to take place during the transition of power -- that is, between February and June. Steiner told El Faro that he drafted the request to the UN in February, but clarified that he did not know why Bukele didn't send the letter until two weeks ago.
The first phase, according to the documents prepared by Steiner and Ulloa, stated that framework and cooperation agreements between the Cicies and the various government institutions should be signed between June 2019 and June 2020, "to ensure effective work by the commission." They also stipulated that the justice system would be strengthened in this phase, along with the various institutions of the Public Ministry (i.e., Attorney General, Ombudsman for Human Rights, Public Prosecutor.)
The second phase wouldn't begin until April 2021, according to these documents, and would involve establishing mechanisms for citizen observation and oversight of Cicies' work, as well as infrastructure to support informants and witnesses.
The information in the preliminary documents appears outdated; it describes establishing international cooperation agreements with the two other Northern Triangle countries, for instance. But the Cicig in Guatemala is no longer functioning, and the Maccih's work seems to have slowed to a standstill. "That is no longer going to happen," said Steiner, who has since become the president of Conamype. Steiner was moved from the Cicies project when he assumed presidency of the agency, which advocates for the development of small and medium-sized businesses. A few days before the press conference in the Presidential Residency, he said that he didn't know if the original design of Cicies remains in effect.
The documents drawn up by Steiner and Ulloa, and the plan announced by Bukele and the OAS, raise the question of whether the inaugurated project is the same one that Vice President Ulloa has spearheaded since October 2018. At the conference, Bukele acknowledged the Vice President's contribution and said he will stay connected to the project, although he did not specify what Ulloa's role will be once the commission is installed.
FI name: September 2019