The UN drew up plans for a CICIES similar to Guatemala’s, but Bukele opted for the OAS’s proposal instead
The United Nations proposed a CICIES with more extensive maneuvering margins in order to support prosecutors in investigations regarding cases of corruption. Nayib Bukele’s government, however, preferred the OAS’s model, which still—to this day—is limited to only giving “technical counseling” and does not conduct investigations. Three months after the proposal was sent, the government hasn’t yet given the UN an answer. Bukele—after being consulted on the matter—says that the project with the OAS was “much faster.”
On November 4th, 2019, the United Nations (UN) sent the Government of El Salvador a much more competent proposal for an International Commission Against Impunity than the proposal announced by President Nayib Bukele and the Organization of American States (OAS). Twenty-two days later, and without even sending the UN a response, the Salvadoran government signed an agreement with the OAS. By the end of January 2020, the UN had still not received a reply from the President.
El Faro asked Bukele why his government had not given the UN a response regarding their CICIES proposal. “We’ve worked more quickly with OAS contracts. The UN’s offer to help us still holds and of course we will take it,” he said on January 27 during a press conference held at the presidential home. Bukele added that “the specific correspondence with the United Nations is not a public matter.” His Foreign Relations Office, however, thinks otherwise.
On December 18, 2019, the Foreign Relations Office handed over copies of the UN’s proposal to the Center for Legal Anticorruption Consultation, ALAC, via their access to information office. Those official documents firmly state that the CICIES proposal from the UN was sent at the beginning of November by the Under-Secretary-General for Political and Peacebuilding Affairs, Rosemary A. Dicarlo. It was received by the ambassador to El Salvador before the UN, Egriselda López. DiCarlo included a three-page document that sketches an entity emulating the activities of the now-extinct International Commission against Impunity of Guatemala (CICIG), which succeeded in bringing to trial the then-President of Guatemala Otto Pérez Molina, then Vice President Roxana Baldetti; and which ultimately prosecuted businessmen that financed the campaigns of political parties in an irregular manner.
The UN proposed autonomy and independence as “essential elements” for a CICIES. To achieve this, it promoted legal internal reform. This would give a team made up of foreign experts and national researchers the ability to investigate, search, solicit, and receive information related with acts of corruption within the State. Other than being equipped with the ability to “accompany cases as plaintiffs, after having reformed the necessary legislation …" a huge benefit of the UN’s proposal was the creation and strengthening of “a Special Prosecutor’s Office against Corruption and Impunity,” which emulates FECI created in Guatemala in 2008. That entity was in charge of heading (with help from the CICIG) the accusations emblematic of corruption. The UN required the definition of work protocols, the selection of cases, and the procedures for employee selection.
In El Salvador, one obstacle towards the establishment of an international commission with investigative abilities is the constitutional blockage that outlines the prosecutor’s office as the only institution with the authority to investigate a crime and take penal action. In the short term, in order to allow a CICIES to have room to maneuver, the UN proposed the signing of a treaty that would need the ratification from El Salvador’s Legislative Assembly. What’s more, the UN proposed the removal of obstacles—via legal internal reform—to establish “essential conditions” in order to function. Among these were the ability to file a complaint and conduct investigations in mixed teams headed by the District Attorney.
“The CICIES should be established via an entity with a well-ranked treaty, which could include reforms to internal law that are necessary to allow for it to function. This treaty would include legislative ratification, in accordance with internal constitutional norms,” says the UN’s proposal.
The treaties, according to article 144 of the Constitution, constitute laws of the Republic as they come into effect. “In the case of conflict between the Treaty and the Law, the Treaty will prevail,” states the constitution. This imminent treaty, for Manuel Escalante, subdirector of IDHUCA—the Human Rights Institute of the Central American University in San Salvador—would help in avoiding the arbitrariness with which investigative cases are assigned to the CICIES. “It can establish the parameters for the cases in which the prosecutor must turn to the CICIES for support,” he said.
It was defined in the proposal that the CICIES—as the final objective—was going to “strengthen national abilities regarding the investigation and prosecution of political and economic networks that generate impunity—among other types of networks—by means of corrupt actions.” It stated that it had to be approved by international and national experts to “ensure the effective transference of powers.” It also called for “Special Mixed Commissions'' headed by prosecutors and monitored by a supervisory board to be created with the purpose of conducting “monitoring and accountability.” It was also proposed that the entity respect the constitutional functions and the authority of the State. In order to regulate this collaboration, the signing of a “work protocol” was proposed.
The UN’s proposal also offered short and long-term alternatives so that the CICIES could file a complaint in cases led by the State. Escalante insisted that the approval of a treaty with legislative ratification would give the CICIES “ample responsibility of administrative control” and greater autonomy. For Escalante, being equipped with a CICIES at the service of the State would render the investigation of corruption and impunity more potent.
It's certain that the UN’s proposal more closely resembles the original offer from the new government, created in the Cuscatlán Plan and led by Vice President Ulloa. The document established that they would look to the UN and the OAS for support in order to sign a working agreement. That working agreement would thereafter be approved by the Legislative Assembly so that the CICIES would receive, in accordance with the law, the necessary powers to function.
During his campaign and in the first 100 days of his Presidency, Bukele promised the creation of an entity capable of investigating corruption in El Salvador but ended up choosing an entity that was hastily put together. To this day, it can only gather information of presumed cases of corruption in the executive branch and put them in the hands of the prosecutor and wait for it to accept “technical assessments.”
Regarding this matter, the Attorney General Raúl Melara has been clear in explaining to what extent there will be cooperation with CICIES within the OAS model. “Not necessarily (would the CICIES have access to information pertaining to cases), because the investigations would still belong to the prosecutor’s office,” he said in an interview with El Faro. In mid-January, Melara announced his support for the CICIES in three cases: the construction of the El Chaparral dam, the conformity/uniformity of the public transport system SITRAMSS, and subsidies for public transport. Melara was once again emphatic when signaling/pointing out that the collaboration was with regards to counsel, access to resources/funding, and technical equipment for the prosecutors.
The agreements that the OAS signed with the Supreme Court of Justice and the Ministry of Justice of Public Security also depict a CICIES as an office limited to giving technical consultation. The UN’s proposal also offers these supports (such as producing reports, proposing and supporting structural, institutional, and legal reform) in addition to collaboration with other state institutions and civil society.
The UN also identified topics that could be subject to technical assistance. “The development of abilities of forensic and financial analysis in the FGR, the repatriation of capital diverted to foreign countries in cases of corruption, the cooperation between institutions, transparency in the administration of funds and contracting, and the prevention of tax evasion.”
The journey to the CICIES that never was
The lack of response from the Salvadoran Government to the United Nations was, according to Bukele, a decision made due to the advance and speed of the project carried out by the OAS. However, that explanation is questionable if we review the steps that Bukele’s own Government took when arriving to the agreement on November 26. It also sparks doubts regarding the seriousness with which the UN was invited to participate in this project.
In August 2019, the government requested support from the UN regarding the matter, but on September 7, it announced a technical committee with the OAS to begin the initiation of what would eventually become CICIES. The announcement was—somewhat surprisingly—made during the span of the first 100 days of Bukele’s presidency. The CICIES that would eventually result from those first sketches was depicted as an entity that would depend on the executive branch, unlike the proposal the UN would send afterwards.
The September announcement to work with the OAS was surprising, especially considering how different it was to the original proposal from Vice President Félix Ulloa. It was also surprising that the announcement omitted the participation of the United Nations. Bukele failed to even mention the UN. Some days later, Vice President Ulloa travelled to New York to meet with the Secretary General, after which Bukele attempted to approach the margins of the General Assembly.
In letters sent by the UN, DiCarlo mentions a meeting—on September 7, 2019—in which Vice President Ulloa participated. DiCarlo also mentions a second meeting—on September 25—that President Nayib Bukele attended. At both meetings, the Vice President and President invited the Department of Political Affairs to take part in the technical committee announced in September.
Following the meetings with the president, the UN sent an exploratory mission to the country. In fact, on the first page of the memorandum, the UN gives its thanks for the technical mission’s reception, which was requested by Vice President Ulloa, and took place in El Salvador between September 30 and October 5.
With a much clearer understanding of the requirements needed to create a CICIES, the UN finally sent their proposal on November 4. It listed eleven “essential elements of the commission” in order to guarantee the establishment of an entity whose main characteristics are to be “independent, impartial and autonomous.”
By November 19, 2019 (two weeks after the Salvadoran ambassador had first received the UN’s proposal), Bukele had spoken to the United Nations. “What can happen now, is that the UN can participate in the efforts that have been made with the OAS,” said the president in a conference following the swearing in of the current President of the Legislative Assembly, Mario Ponce of the National Coalition Party (NCP).
In truth, the government had by then already prioritized the project with the OAS and never responded to the counter-proposal sent by the United Nations, in which the UN asked for a clear delineation between “the functions and mandates of the OAS and the United Nations.” Meaning that the UN had given the option to establish protocols for cooperation if and only if the functions of each entity within the project were precisely defined.
By the time the government signed the agreement creating their CICIES on November 26, policies outlining the functioning, financing, and the extent to which they could investigate networks of corruption had still not been specified. In fact, the government signed an agreement with the OAS even though the technical committee installed in El Salvador had yet to obtain authorization from the prosecutor’s office to define the “technical consultations” in the cooperation agreements. That agreement was not signed until December 10, a month after the UN’s proposal and 13 days after the agreement with the OAS.
The UN on hold?
On January 23, 2020, the UN’s office of communications in El Salvador told El Faro that they had not seen to the matter of the CICIES and that questions should be directed to the Secretary General of the UN, in New York. El Faro tried to obtain an official comment from the entity, but as of publication, there was no response. Notwithstanding, sources close to the process and proposal confirmed that the Salvadoran government has yet to answer.
On January 20, 2020, 14 civil society organizations—including the Foundation for Development (Funde), Accion Ciudadana, and Cristosa—expressed their doubts regarding the process by which the CICIES is being established. They noted that the government still wasn’t providing a pathway that would enable the UN to participate. “If given an official request, the United Nations would have agreed to support the country in the establishment of CICIES. Nonetheless, the government of El Salvador has not replied to the UN’s offer,” they said in a statement.
Representatives from these organizations travelled to New York during the first week of December to meet with officials from the United Nations Development Program, the Judicial Office, and the Department of Political Affairs. Jessica Estrada, a researcher from Funde and Eva López, president of Futuro Abierto, told El Faro that representatives from these offices said that, after a month of waiting, they still had not received a response from the government regarding the proposal for collaboration. “At the UN they stated that not receiving a response from a government was itself a response. I perceived disappointment, because when the meetings occurred (in September with President Bukele and with Vice President Ulloa) the UN sent a mission to El Salvador that identified obstacles within the judicial code that hindered the creation of an office similar to Guatemala’s CICIG in El Salvador,” said Estrada.
López said that even though there isn’t an overt “no” from the Government, the lack of response eliminates the possibility for the UN to partake in the OEA’s CICIES and that, in terms of diplomacy, can be interpreted negatively. “The UN’s representatives that we met with stated that until they receive a ‘no’ as an answer they are still willing to cooperate. But if there is not a formal invitation, they cannot participate because they have to respect the government’s autonomy,” she said.
Paul Steiner, a member of Félix Ulloa’s team who participated in the original creation of the CICIES, confirms that in that the proposal from the OAS was conceived as an entity charged with prevention, consultation, and support for institutions. According to Steiner, who is now the president of CONAMYPE in the new administration, it was the UN who had the function of filing lawsuits and punitive aspects in the plan. “The original plan was for the OAS and the UN to work together on the CICIES.” According to Steiner, it's normal that the UN is still not involved in the process. “The UN navigates its processes at a much slower pace than the OAS, which has greater autonomy thanks to the Secretary General. It will take some time for the UN to become incorporated,” he said.
*With reporting from Gabriel Labrador, translated by Sophia Lencioni
FI name: February 2020