MEXICO

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• MEXICO: Turning the tide on corruption?

  LatinNews 07 February 2020 Hits: 1397

  Mexico climbed eight positions in the 2019 Corruption Perceptions Index (CPI) published by Transparency International (TI), the leading NGO in the global fight against graft. This marks the first time that Mexico’s ranking has improved since it embarked on a five-year plunge in 2012. This result has already been lauded in Mexico and taken as a glimmer of hope that President Andrés Manuel López Obrador’s commitment to stamping out corruption is genuine and will help eradicate it. However, while some of the anti-corruption measures adopted by the López Obrador administration since it assumed office in December 2018 have offered some promise, the young government still faces major challenges and much hard work is yet to be done.

  The CPI has been compiled on a yearly basis by TI since 1995. This detailed report, the organisation’s most widely recognised production, offers a quantitative measure of perceived public-sector corruption which it determines by drawing on 13 data sources combining expert assessments and opinion surveys. While not immune to critique, it is one of the clearest and most respected tools for estimating corruption in the countries surveyed – this year 180 nations were surveyed.

  Mexico and the CPI

  In its section on Latin America and the Caribbean (LAC), which surveys 18 countries, the CPI singled out Mexico along with Nicaragua as two nations that have seen significant falls in their ratings since 2012. In 2012, under former president Enrique Peña Nieto (2012-2018), Mexico scored 34 out of a possible 100 points on the CPI, where zero denotes high levels of perceived corruption and 100 denotes lower levels of perceived corruption. This means Mexico ranked 105^th out of 176 nations, alongside the likes of Bolivia and Kosovo. By the time Peña Nieto left office, Mexico’s score had fallen to 28, and it ranked 138th out of 180 nations equalling the likes of Russia and Iran. In this year’s index, Mexico scored 29 points out of a possible 100, ranked 130th, up eight positions.

  The average score for the Americas and indeed for the world in the 2019 CPI was 43, placing Mexico far below average even amongst its neighbours. Mexico’s score is also the lowest of all the Organisation for Economic Co-operation and Development (OECD) member states (Chile, the only other Latin American OECD member, scored 67 points in the CPI and was ranked 26^th).  Indeed, TI indicates that Mexico scored particularly badly, even amongst LAC nations, in vote-buying and paying bribes for public services. TI results estimate that 25% of LAC citizens are offered a bribe in exchange for their vote in national, regional, or local elections. But Mexico was the worst-offending nation in this area with a figure of 50%. In addition, 25% of Mexican nationals were threatened with retaliation should they fail to follow through and vote as told.

  Paying a bribe in Mexico is standard fare. In LAC only Venezuela recorded a higher percentage of citizens who reported that they had paid a bribe on public transport – in Venezuela it was 50%, while Mexico came in at 34%. The same question was asked concerning six central public services: the police, the courts, healthcare, schools, identity documents, and utilities. Respondents were asked first to say if they had encountered a situation in which they were asked to pay a bribe over the past year, and then if they had paid a bribe or offered a gift or favour in exchange for the required services. In Mexico, 76% had encountered such a situation when seeking one of these services; and of those, 21% had paid a bribe. The service most connected to bribes was the police – 52% of Mexicans who had come into contact with the police in 2019 paid a bribe.

  There were some positives. The overall bribe rate in Mexico has fallen from 51% in 2017 to 34% in 2019. Overall, 44% of Mexicans felt corruption had increased over the past 12 months. This sounds high, but the figure is actually down from 61% in 2017, and was the third best score in LAC, where the average was 53%. Also, 61% of Mexicans think the government is doing a good job in trying to tackle corruption, up from 24% in 2017, which is the third highest score in LAC, where an average of 57% think the opposite. Finally, 79% of Mexicans think ordinary people can make a difference in the fight against corruption, up from 72% in 2017.

  López Obrador’s strategy

  Although Mexico’s score is still a long way below average, TI notes that a recent anti-corruption reform, along with a new, legally autonomous attorney general’s office, are “positive changes” (there are however misgivings in Mexico over the latter’s independence – see following article). López Orador assumed office after winning election on a platform that put tackling the scourge of endemic corruption in Mexico at the top of its list of priorities.

  Along with the strong anti-corruption rhetoric employed by López Obrador, his administration has adopted a series of high-profile anti-corruption initiatives advancing the investigations into emblematic government corruption cases, such as the Odebrecht regional corruption scandal and the ‘Estafa Maestra’ public fund embezzlement scheme, in which US$400m in funds for public education were siphoned away between 2013 and 2014 through the use of ‘ghost firms’.

  The government has also made some structural changes designed to enhance the authorities’ capacity to tackle official corruption. None more important than the establishment of a new, supposedly more independent federal attorney general’s office (FGR), a process that was concluded with the approval of a law that makes bribery, intimidation, abusive exercise of authority, influence peddling, embezzlement of public funds, and illicit enrichment a crime. Meanwhile, in March 2019 Luz Mijangos Borja was appointed Mexico’s first specialised anti-corruption prosecutor. After eight months her office had already launched investigations into 680 cases.

  In an interview with national daily El Sol de Mexico published on 24 January, Eduardo Bohórquez, executive director of Transparencia Mexicana (TI’s chapter in Mexico), attributed much of the turnaround to the strengthening of the financial intelligence unity (UIF). The UIF is the agency inside the federal finance ministry (SHCP) that is tasked with preventing and combating financial crimes including money laundering, the financing of terrorism, and illicit enrichment.  

  After López Obrador appointed Santiago Nieto, a former specialised electoral crimes prosecutor, as UIF head, the agency has brought corruption related charges to some prominent political figures who would previously have seemed untouchable. These include former social development minister, Rosario Robles (2015-2018), and Emilio Lozoya Austin, the former director (2012-2016) of the state-owned oil firm Pemex. This has helped to create a general perception that there will be no impunity for acts of corruption committed by former officials.

  Six of one, half a dozen of the other

  However, the targeting of high-profile officials in previous governments has also generated allegations that the López Obrador administration is using its declared crusade against corruption to persecute its political opponents (with the UIF in particular seen as the government’s ‘attack dog’). There are also concerns that the government’s efforts to create an independent and robust national anti-corruption system is part of a wider strategy to centralise power that could belie the effectiveness of the newly created institutions.

  In November 2019 The Financial Times ran an article highlighting the López Obrador government’s “double-standards” by contrasting the vastly differing fates of its allies and political opponents accused of similar wrongdoings. Indeed, the contrast has been noticed by a number of critics, with María Amparo Casar, executive president of the NGO Mexicanos Contra la Corrupción y la Impunidad, calling it a “politicisation of justice”, while Edna Jaime, leader of public policy think-tank México Evalúa, has spoken of “a settling of scores”.

  Whether or not López Obrador’s anti-corruption initiatives will manage to create a robust government apparatus that can work towards eradicating corruption will likely become clearer throughout the rest of his six-year term ending in 2024. But sceptics might be quick to point out that Peña Nieto also presided over a one-point improvement in Mexico’s CPI score in the first two years of his term, before the anti-corruption drive appeared to wane and various corruption allegations implicating government officials, including senior cabinet members and Peña Nieto himself, started to emerge. Nevertheless, the López Obrador administration has been quick to celebrate the improvement in the CPI score as an achievement of its anti-corruption policies.

  Following the release of the CPI report, Irma Eréndira Sandoval, the head of the Secretaría de la Función Pública (SFP), the federal oversight body, issued a statement in which she said that the positive outcome was the product of the clear anti-corruption strategies implemented by the López Obrador government. According to the statement, these strategies have as key factors: tackling issues such as conflicts of interests; fighting impunity; considering corruption and electoral fraud as serious crimes; and combating clientelism and corporativism. The statement notes that the outlining of these key factors was in line with recommendations made by TI in previous reports.

  Sandoval, who was appointed by López Obrador soon after he assumed office, also noted that under the new administration the SFP has taken actions to increase the accountability and transparency of public officials such as urging public officials to present sworn declarations of assets She went on to highlight that this new focus has led to exemplary punishment being meted out to former government officials implicated in corruption cases.

  Recommendations

  For the director of TI’s Mexico chapter, Eduardo Bohórquez, the next steps necessary to advance the fight against corruption in Mexico are bringing down the corruption networks and not just the “big fish”; and bringing justice to the guilty parties both in the courts and in recovering their stolen assets. Meanwhile, Transparencia Mexicana issued a statement on the CPI that ended with three concrete recommendations for the Mexican government:

  • Consolidate anti-corruption efforts, particularly at state level. Efforts need to be national and not just by the federal public administration body.

  • Ensure full compliance with the publishing of sworn declaration of assets and interests for all public servants, especially in areas of risk and in the higher levels of government. Five years after the promulgation of a constitutional reform with this objective, the systems of assets and interests declaration continues to be postponed.

  • Ensure an autonomous and independent federal attorney general’s office with democratic checks to deter its selective or political use. One of these checks is the creation of a penal persecution policy in matters of corruption control.

  Pending matter

  Bohórquez noted that while Mexico may be progressing in combating government corruption under the López Obrador administration, one major pending matter is recovering the money that the country has been defrauded from. Noting that despite the opening of investigations into corruption by former government officials and the sanctioning of these individuals, the authorities have yet to recover any of the embezzled money, Bohórquez commented that “Two weeks ago Angola recovered US$5bn in one operation. That’s anti-corruption”.

  Coparmex chimes in

  The Confederación Patronal de la República Mexicana (Coparmex) local business lobby responded to the release of the new Corruption Perceptions Index (CPI) by stating that while an improvement, Mexico is still far from where it needs to be if it wants commercial relations with other countries based on certainty and confidence for investors. Coparmex added that the Mexican government must now consolidate the new national anti-corruption system and the country’s institutions, as this is “the only way to substantially progress and eradicate bad practices that affect Mexico’s development”.   

• MEXICO: Questions about FGR’s independence emerge

  LatinNews 07 February 2020 Hits: 1418

  The measures designed to ensure the independence of Mexico’s recently reformed federal attorney general’s office (FGR) are not being met and there are signs that the head of the FGR is too close to President Andrés Manuel López Obrador. These are the findings of a new report on the FGR, published on 15 January. Reinforcing the independence of the attorney general’s office (previously known as the PGR) was a key objective of the 2018 reform of the institution, which in its previous incarnation was often considered an appendage of sitting governments. The report’s findings raise concerns that rather than strengthening the attorney general’s office, the implementation of the reform will end up further weakening it.

  The report, entitled ‘One year of justice and independence of the FGR?’, was drafted by investigators from the Universidad Nacional Autónoma de México’s (Unam) judicial investigations institute with the help of five different civil-society organisations. Its main conclusions are that FGR head, Alejandro Gertz, has not been fulfilling the provisions outlined in the 2018 reform to guarantee the independence of the FGR; and that there are “worrying indications” that Gertz is too close to President López Obrador. The report notes that Gertz was appointed in January 2019 following a process marred by questions about his political affinity with the president. Gertz was nominated by López Obrador and ratified by the federal congress in which the ruling Movimiento Regeneración Nacional (Morena) party has a majority.  

  Similarly, the Unam’s report notes the designation of the specialised anti-corruption and human rights prosecutors were not deemed to have met the transparency and political independence criteria set out in the selection process outlined under the reform. According to the report, these deficient selection processes “infringe not only the autonomy of the FGR but also its real independence, and with it the key to its legitimacy […] real interinstitutional control” of the office. The report also points out that since its establishment, the FGR has failed to implement the ‘crime persecution plan’ envisioned in the reform and develop a new regulatory framework for establishing a specialised gender and violence against women unit, as stipulated by the law.

  Based on these deficiencies the report warns that “in practice the FGR is offering an erroneous interpretation of independence and autonomy […]. It does not mean isolation, not collaborating with other institutions, not being accountable […] and above all not fulfilling its own law.” More problematically, the report argues that all of this invariably undermines the FGR’s capacity to work effectively to improve Mexico’s poor record in resolving judicial cases and reducing impunity. These have been longstanding problems that the establishment of the FGR was designed to address. However, it appears that the FGR has not made any progress in changing this. The ‘Observatorio de la Transición 2019’ report by local NGO México Evalúa, released in October 2019, found that since its establishment, the FGR had only resolved 7.6% of the cases opened.

  Poor performance

  These findings led México Evalúa to conclude that, despite the pledges that the FGR would be more efficient in solving cases than the PGR, the new office has so far failed to reduce the high levels of impunity in the country. According to México Evalúa, the FGR’s poor performance is the result of the “limited” progress that it has made in terms of improving its “autonomy, institutional development, normative development, and rate of transformation”. It points out that on official data available up to October 2019, the number of backlogged cases has increased by 6.3% compared with the same period the previous year, when the PGR was still in place. Yet only five of every 100 cases opened by the FGR correspond to ‘complex crimes’ such as those involving corruption networks, money laundering, kidnappings, or enforced disappearances.  

  The México Evalúa report criticises the apparent lack of a clear long-term strategy on how to tackle criminality and impunity. “Although formally the commitments to conclude the transition during a set time frame have been met, we find that the FGR is still busy with what is urgent rather than with what should be the priority,” México Evalúa said, adding that “there is no attention given to macro-criminality and complex criminal phenomena that would allow it to abandon once and for all operations based on solving isolated cases.” The NGO argues that this is the result of a failure to implement the provisional crime persecution plan that the FGR itself drafted and said it would implement as part of the transition from PGR to FGR. Moreover, although the FGR is technically completely independent from the federal executive, an independence index developed by México Evalúa found that the FGR’s level of independence has only increased by 27.7% (that the FGR head was nominated by the president was identified as a major weakness).

  México Evalúa’s conclusions about the FGR are shared by Impunidad Cero, a local anti-impunity NGO. In its own report released in December 2019, it found that in only one out of every 10 murder cases in Mexico is the perpetrator punished. But Impunidad Cero says that levels of impunity are even higher given that its findings are based on official data, which tends to underrepresent the actual number of crimes committed, as it only includes cases that have been denounced to the authorities. Consequently, Impunidad Cero argues that Mexico’s justice system, the FGR included, is even more inefficient in delivering justice than the available data suggests.

  Growing concerns

  The publication of the Unam report coincided with the leaking of a document containing nine judicial reform initiatives drafted by the FGR to improve justice provision in Mexico. The initiatives propose introducing changes to the penal code, the constitution, and public security legislation to give prosecutors and judges more powers to prosecute and convict those guilty of crimes. But civil-society organisations and judicial experts have criticised some of these proposals, such as giving prosecutors the power to request the preventative detention of suspects of a wide range of crimes, and to presume the culpability of any suspect that refuses to collaborate with investigators. Critics argue that these proposals violate the principal of the presumption of innocence.

  Meanwhile, plans to give the FGR the ability to monitor the telecommunications of suspects without having to obtain a court order has been described by critics as a potentially major setback for human rights and as going counter to the constitution. They say that while improving Mexico’s justice system is necessary, this should not be achieved at the expense of respect for human rights. The questions about the lack of independence of the FGR have also produced concerns that the judicial reform proposals represent an attempt by the López Obrador government to give the FGR more powers which could then be used to keep tabs on and even harass the government’s political opponents.   

  The FGR and the government responded to the criticism by saying that the leaked documents did not reflect the final version of the reforms that it will be proposing. In a 20 January press conference, Gertz said that the FGR would be presenting its finalised proposals to the federal congress once it returns from its current recess in February. Gertz rejected accusations that the FGR was seeking reforms that would undermine human rights or constitutional guarantees. Nevertheless, Gertz insisted that changes to Mexico’s judicial system are needed in order to give the FGR the ability to improve the fight against criminality.

  The cost of impunity

  According to a study published in October 2019 by the Instituto Tecnológico y de Estudios Superiores de Occidente (Iteso) university and consultancy firm Creatura, Critical Thinking Advocates, impunity produces M$422.3bn (US$21.36bn) in losses annually to the Mexican economy. This is equivalent to 0.57% of Mexico’s GDP.

  PFM head appointed

  On 6 January Mexico’s federal attorney general’s office (FGR) announced the appointment of Kayosci Guerrero Ortega as the new head of the federal ministerial police (PFM). The PFM is a federal police force that falls under the FGR and is exclusively tasked with fighting corruption and organised crime. An FGR statement noted that Guerrero has been a PFM officer for over 18 years and that his appointment was the result of an internal selection process. It highlighted that this was the first time that the PFM head was internally selected.