Inside Civil Society's Bid to Strengthen El Salvador's Anti-Corruption Commission
For the past year El Salvador’s official response to the pandemic has been marred with allegations of inflated contracts, self-dealing, and fraud. To combat the widespread corruption, and to check the future influence the Bukele administration could exert on state regulators under a Legislative Assembly controlled by the president’s party starting May 1, advocates have proposed a law that would significantly expand the toolkit of the International Commission against Impunity in El Salvador (CICIES).
Stemming corruption is a political lightning rod in El Salvador. Of the past five presidents, prosecutors have saddled three with embezzlement or money laundering charges. Bukele made the establishment of an international anti-corruption commission a core campaign pledge. Faced with two proposals for the commission in 2019, Bukele opted for that of the Organization of American States (OAS), which envisioned the CICIES as a technical advisor, over the more independent commission proposed by the United Nations based on the experience of Guatemala’s now-defunct international commission, the CICIG.
When the CICIES opened shop that November, many close observers read Bukele’s choice of proposal as a sign that the long-awaited commission had fallen short: “We always believed that the CICIES should have the independent powers to investigate corruption cases and press charges, while still in collaboration with the attorney general,” explained Leonor Arteaga, program director of impunity and grave human rights violations at the Due Process of Law Foundation, an international legal advocacy group based in Washington.
The original agreement between Bukele and the OAS stated that Bukele should work with the Legislative Assembly to convert the administration’s cooperation agreement with the commission into binding domestic law, but thus far the president has not done so. A coalition of NGOs, including the DPLF, is seeking to fill this legislative void by proposing such a law in the closing months before elections widely expected to reshape the legislature in favor of the Bukele administration.
“Under these new circumstances, and given that the current U.S. administration will have an important presence in the OAS, the panorama is changing and making way for a CICIES more in harmony with what we hoped it would be,” said Roberto Rubio, executive director of the National Foundation for Development (Funde), a Salvadoran research institution focused on economic development and transparency.
Their proposed law, which Mario Ponce, president of the Legislative Assembly, presented to the legislature on February 3, seeks to ease the contradiction at the core of the initial OAS cooperation agreement: in order for the CICIES to look into corruption, it has to first receive an invitation from the very institutions it is tasked with investigating. Under the new law, Salvadoran public institutions would be unable to sway the commission’s investigations by crafting their own cooperation agreements; the state’s full cooperation with the commission’s investigations would be mandatory and the terms set by the legislature.
Under the proposal, the commission’s investigations into corruption would extend not only to the executive branch, but to the Legislative Assembly, courts, mayor’s offices, and all other institutions of the Salvadoran state. The proposal would also shift the relationship between El Salvador’s Attorney General’s Office (Fiscalía), the only state actor with the legal power to press charges, and the commission.
“When [the CICIES] finds evidence of corruption, the constitution would require them to report it to the Attorney General, but if prosecutors don’t act on the evidence in a given time frame, then the case would be converted to a private action so that the CICIES could come and press charges,” Gilberto Calderón, constitutional litigation manager for the Salvadoran human rights organization Azul Originario, told El Faro.
Azul Originario, Funde, and DPLF are three of fifteen sponsor organizations including well-known Salvadoran and international human rights, legal, and transparency groups. Cristosal, a Central American human rights organization tied to the international Episcopal church, is another leading proponent of the bill. There’s also Mario Vega, a prominent Evangelical pastor and columnist who is the sole individual participant in the coalition.
The proposal would also require that the commission maintain complete financial and operational independence from the presidency and other state actors, continue to collaborate with the Attorney General’s Office (Fiscalía), establish cooperation agreements with other state actors, including the courts and police, and involve civil society in its corruption monitoring.
Another factor in the organizations’ calculus, said Noah Bullock, executive director of Cristosal, is shifting geopolitics under the Biden administration.
“The U.S. administration has clearly stated that one of the conditions for bilateral relations will be a substantive commitment to the fight against corruption and for democratic governance,” he stated. The U.S. Embassy in El Salvador has vocally defended the commission since the change of administration. “The United States government continues to support the CICIES in the fight against corruption and impunity in El Salvador,” tweeted Brendan O’Brien, the highest-ranking interim embassy official, on January 28. “We’re impressed with the initial success of the joint work of the CICIES and [Fiscalía] in identifying corrupt actors and bringing them to justice.”
Mari Carmen Aponte, U.S. ambassador to El Salvador under Obama and frequent Biden campaign surrogate in Central America, weighed in on the Biden administration’s potential posture toward efforts to strengthen the CICIES’s mandate.
“We have seen how civil society has worked diligently to strengthen the CICIES-OAS,” she wrote in a January column in El Faro. “I have no doubt that the newly inaugurated Biden administration will offer its determined support for this and similar efforts.”
For some senior U.S. officials, though, doubts about the commission linger. In an interview with El Faro, senior Biden advisor Juan S. González voiced the administration’s preference for a regional commission and expressed uncertainty about the CICIES’s effectiveness thus far. “I don’t know how effective it’s been,” he said of the commission, while warning that “a leader unready to go after corruption won't be a U.S. ally.”
Bullock expects the overall uptick in United States support for the CICIES under the Biden administration to force the hand of both President Bukele and El Salvador’s political parties. Curbing corruption “was Nayib Bukele’s chief electoral mandate when he took office, and now the political class must decide how to respond to the proposal.”
Giving the CICIES Teeth
El Salvador’s international anti-corruption commission lives in the shadow of two similar, yet much more forceful regional predecessors: the International Commission against Impunity in Guatemala (CICIG) and the Mission to Support the Fight against Corruption and Impunity in Honduras (MACCIH).
The work of these now-defunct commissions severely rankled the countries’ respective political classes as they looked into, for example, the family dealings of former Guatemalan president Jimmy Morales. Upon literally abandoning his office out the back door on his last day in 2019, Morales narrowly dodged national prosecutors — and angry egg-wielding protestors — by climbing over parking lot trash bags as he rushed to his swearing-in to the Central American Parliament. Evidence collected in CICIG investigations sent his predecessor, Otto Pérez Molina, to prison.
Despite these advances, political elites regrouped and struck back by hamstringing their activities by, for example, revoking the visa of the CICIG’s Colombian commissioner, and eventually disbanding the commissions by refusing to renew their mandates. The Trump administration consistently diverted its gaze from the subterfuge in exchange for the governments’ cooperation in slowing immigration to the United States.
Observers in El Salvador witnessed the CICIG and MACCIH collapse, yet held out hope for a Salvadoran commission that would learn from the vulnerabilities and absorb the strengths of its regional predecessors, according to Noah Bullock of Cristosal.
That core idea, of an independent CICIES, gained ground during the government’s pandemic response. From the commission’s inception through the first several months of the pandemic, while widespread reports of official corruption in the emergency response were surfacing in the Salvadoran press, little was known about its internal operations. The work that the presidency and the Fiscalía — the only two entities to sign cooperation agreements with the commission — had asked it to conduct was also unknown, raising questions as to whether the commission was a truly independent, nonpartisan investigator.
Those question marks have persisted. “We know very little about the inner workings of the CICIES: its membership, their criteria for selecting cases, which of these cases have gone to court (none, to our knowledge) or if they’re working on more institutional matters such as proposed reforms,” said Arteaga of the Due Process of Law Foundation. “There are almost no channels for communication about the progress of their work.”
Behind the scenes in the early stages of the pandemic, the CICIES obtained privileged access to internal documents on emergency transactions from government ministries, indicating a clear level of goodwill from the Bukele administration. Meanwhile, the administration deleted publicly-available expenditure records, rebuffed audits from the Legislative Assembly, and temporarily closed the offices of the Institute for Access to Public Information, the organization tasked with responding to freedom-of-information requests.
“We want to see results,” Roberto Rubio, director of Funde, told El Faro in early September. “If the CICIES only exposes cases from the past, as we’ve seen the Attorney General do, well, it’s easy to stand up to those no longer in power. But facing those in power is more difficult, and a test of true independence.”
Then, in early November, a breaking point.
On November 10, the Fiscalía carried out a raid on the facilities of the Ministry of Health to collect internal documents on pandemic-related spending which the administration had refused to turn over to special auditors from the Legislative Assembly. At the time of the raid, Melara publicly claimed the commission had played a key role.
“This process was based on evidence the CICIES provided to the Fiscalía,” Melara told Frente a Frente, a popular Salvadoran interview television show, the day after the raid. “Remember that the CICIES has been auditing the whole process of contract procurement and public budgeting relating to the pandemic, and when they found irregularities they informed the Fiscalía to open an investigation. There has been other evidence, but basically, the CICIES provided the strongest evidence.”
As the raid was in progress, the chief of the National Civil Police (PNC) openly obstructed the raid by ordering officers to bar the lead prosecutor’s access to Ministry of Health facilities. It was a clear sign of rising tensions between PNC leadership, which has grown closer to President Bukele, and the Fiscalía. In theory, the PNC, among other duties, collects evidence for the Fiscalía to assess and determine whether to press criminal charges. In collecting evidence on corruption in the Ministry of Health, the CICIES picked up where the PNC fell short.
Its ability to collect that evidence from government ministries, though, was conditioned entirely on the goodwill of the Salvadoran executive branch, which oversees the ministries. It’s currently unclear how the relationship between the commission and the executive has changed since the raid, but proponents of the CICIES bill argue that securing a legal requirement forcing government offices to cooperate with the commission will be vital to its future work, particularly given the possibility of a new legislature dominated by a single party, Nuevas Ideas, which is closely managed by the president.
Legislative elections are scheduled for February 28, and the new Legislative Assembly will take office on May 1. The new legislature, whatever its composition, will elect an attorney general to replace Melara, who told Frente a Frente last July that he won’t run for reelection for another three-year term in December of this year.
Melara is in favor of the Legislative Assembly’s passage of the new CICIES law, he told El Faro, “as long as it stays within the constitutional and legal framework.” He cautioned, though, that “we cannot put all of our faith in an international entity with a limited mandate.” He called for an increased budget and more personnel to strengthen his office’s work and reforms to the Fiscalía's organic law, both of which the Assembly has not approved. “All international cooperation is welcome and will be honored. The CICIES is currently offering its assistance, but in the end, domestic institutions are here to stay and should be strengthened.”
CICIES commissioner Ronalth Ochaeta also acknowledged the proposal to expand the commission's mandate. “We are paying close attention to developments in the process and the probable outcome,” he told El Faro. “Ideally, [the bill] would have the broadest consensus possible — not only in the Legislative Assembly, but also the Fiscalía, Supreme Court of Justice, the Executive, and the OAS Secretary General.”
A Narrow Path to Ratification
Civic organizations cannot propose laws on their own; for that, they need political support from a member of the legislature, courts, or the president. Mario Ponce, president of the Legislative Assembly and deputy for the National Conciliation Party (PCN), presented the law to the Legislative Assembly on February 3 alongside Margarita Escobar, deputy for the Republican Nationalist Alliance (Arena).
On Monday, February 15, the Legislative Assembly’s Commission on Politics, similar to a U.S. congressional committee, asked the Assembly’s executive committee to establish an ad hoc commission with the sole purpose of studying the proposed bill. During the commission stage, language can be modified to the liking of committee members.
If the commission approves the bill, then passage of the law will hinge on the coalition’s ability to wrangle 43 of 84 Assembly votes and a presidential signature. Should Bukele send the bill back, 56 votes — a supermajority — could override the veto and effectively remake the last standing international anti-corruption commission in Central America.
“This is a completely apolitical initiative,” said Gilberto Calderón, of Azul Originario, at a Wednesday press conference announcing the presentation of the bill to the Legislative Assembly. “We’ve sought the involvement of all parliamentary groups represented in the Legislative Assembly, the Government of El Salvador, think tanks, civic organizations, and churches of various denominations,” he noted, adding that interested parties may still join.
The call to participate across the political spectrum is no minor detail in a country that has suffered years of violent polarization.
Bullock argues that the claim that the fight against corruption has been politicized — the idea that the commission would discriminate in its investigations — “has been a major impediment to impartial, robust investigations.” The decision to strengthen the CICIES, he continued, “must be taken by all the social and political sectors in the country. We wanted to spark that debate now, so that it doesn’t get absorbed by one political faction.”
In the current Legislative Assembly’s floor map, the bill’s most vocal support has thus far come from the Assembly’s ideological right wing.
Arena deputies — there are 35 in the current Assembly — have been some of the most vocal proponents of the new CICIES bill. Arena is El Salvador’s most dominant right-wing party, founded by hardline military officers during the civil war. During its almost two decades of rule following the 1992 Peace Accords, one president — Antonio Saca, who governed from 2004 to 2009 — wound up in prison for embezzlement and money laundering. His Arena predecessor, Francisco Flores, died while on trial for embezzlement.
Today’s Arena, which lost the presidency to its left-wing political rival, the FMLN, in 2009, is billing itself as repentant for its past sins of corruption, even as Bukele and his party, Nuevas Ideas, insist that Arena is largely responsible for the country’s political and social woes. Many independent political analysts agree. Perhaps as part of that image makeover, Carlos Reyes, deputy in the Assembly and chief of Arena’s legislative bloc, went on the record about the party’s intentions with the newly-proposed CICIES bill.
“We would support a CICIES clearly defined in law,” he told El Faro. When asked if he would support corruption investigations into his own party members under a new CICIES law, he affirmed, “We have to support the fight against corruption regardless of who is doing it.” Arena deputy Margarita Escobar has also vocally supported the bill, and proponents are expecting broad support from Arena.
Of the political parties who shared their position on the proposal with El Faro, one of the most forceful proponents has been the Christian Democratic Party (PDC), the right-wing party whose sole president, Napoleón Duarte (1984 to 1989), was the first civilian to take office following the military juntas during the civil war. On August 20, 2019, the PDC proposed its own version of an international anti-corruption commission. While leaders of PDC, which holds three seats, have not finished fully analyzing the current proposal nor taken a final stance, they left no doubt as to their overarching intentions.
“We consider it essential for the CICIES to be totally separate from the executive,” said Rodolfo Parker, chief of the PDC legislative bloc. “That is the cornerstone of our support.” The CICIES would also have to preserve strict financial and operational autonomy from all other government entities, maintain a working and constitutionally-sound relationship with the Fiscalía, and create avenues for clear and profound civic involvement. On these grounds, he concluded, the party would agree to “not only give our vote, but also help improve, reaffirm, and push the bill forward as soon as possible.”
The Grand Alliance for National Unity (GANA), a party of aisle-crossing politicians who broke away from Arena following the election of Funes and on whose ticket Bukele won the presidency before defecting to create Nuevas Ideas, turned down multiple written and in-person requests for comment. The Office of the President likewise declined to comment.
As for the Farabundo Martí National Liberation Front (FMLN), the left-wing guerrilla movement-turned-political party which held the presidency from 2009 up until the election of Nayib Bukele, party leadership struck a different tone. While they declined to take a firm stance on the bill due to ongoing internal deliberations, Nidia Díaz, head of the Frente’s legislative bloc, expressed skepticism.
“We have always opposed a CICIES that is above the Fiscalía,” she told El Faro on the day the CICIES bill was introduced in the Legislative Assembly, adding that the commission “cannot have a hierarchy that places it above any other branch of government or law.” While the Frente has expressed past support for the CICIES as a technical advisor, she noted that party leaders are deeply skeptical of granting an international commission independent investigative and prosecutorial powers and, instead, prefer to “strengthen the Fiscalía'' via increased budgets.
Former president Mauricio Funes (2009-2014) made a similar argument while backtracking on his support for a similar anti-corruption commission in 2010. Facing embezzlement charges of his own, Funes fled El Salvador in 2015 for Nicaragua, where Daniel Ortega granted him asylum.
The upcoming elections help explain the timing of the proposal and form the subtext of the parties’ responses. The most reliable and updated national polling shows that Bukele’s party, Nuevas Ideas, stands to consolidate a commanding — and potentially single-party — grip on the Legislative Assembly.
When considered alongside the deep-seated and generalized contempt for the traditional political class that predates Bukele’s presidency, polling conducted in late November by the Institute of Public Opinion at Central American University (IUDOP), showed 70 percent of respondents reported at least some confidence in Nuevas Ideas as a party. The next-closest party, GANA, registered 30 percent confidence.
The other eight parties mentioned in the polling trailed far behind—each under 15 percent. On these grounds, Nuevas Ideas stands to take a commanding lead in the Legislative Assembly, and together with GANA, Bukele’s legislative coalition could very well approach a supermajority of 56 out of 84 seats in the Assembly.
As for Arena and the FMLN, the two poles in Salvadoran politics for the three decades since the end of the civil war, the parties may be on the verge of fading into political irrelevance. The minority parties are under similar existential strain to adapt to the Nuevas Ideas phenomenon. Strengthening the CICIES has thus become less a political exercise in self-regulation for El Salvador’s traditional parties, and more a test of their willingness to strengthen institutional checks against the future protagonists of Salvadoran politics.
Arteaga summed up what the civic organizations see as the current stakes, and the urgency of approving the reforms before the new legislature takes office in May: “If the Assembly changes in favor of the [Bukele] administration, we doubt they will be interested in creating a legally robust, independent CICIES with civic participation.”
*With additional reporting from Roxana Lazo
FI name: February 2021