Today’s guest post is from Bonnie J. Palifka, Associate Professor of Economics at Mexico’s Tecnológico de Monterrey (ITESM), and Luis A. Garcia, a partner at Villarreal-VGF specializing in corporate compliance and anticorruption matters:
The results of Mexico’s federal elections last July have been described as a “tsunami” for Andrés Manuel López Obrador (AMLO) and his National Regeneration Movement, known by its Spanish acronym “Morena.” AMLO won 53% of the popular vote and Morena swept the House and Senate, as well as a majority of the nine state governorships up for grabs and several local legislatures. This is all the more remarkable considering that Morena was founded as a civil society organization in 2011 (and registered as a political party in 2014), and was fighting for control of Mexico’s political left against AMLO’s former party, the PRD. Many are hopeful that AMLO will lead a transformation of Mexico into a modern, peaceful, fair, and prosperous society like Chile or Uruguay, while others fear that he will take the country down the route of Venezuela. That the same person can engender such different reactions is due in part to the vagueness and inconsistency of AMLO’s rhetoric throughout the campaign: sometimes he would take a highly confrontational and uncompromising attitude toward Mexico’s political and economic elite—what he termed the “mafia of power”—while at other times he would strike a more conciliatory tone. But one consistent theme in AMLO’s rhetoric—and in the analysis of the data on the reasons for Morena’s electoral triumph—was profound indignation at the blatant corruption and impunity of Mexico’s political and business elites.
Mexican voters’ frustration with corruption is understandable. Although in recent decades Mexico has undertaken a number of anticorruption measures—including, under former President Vicente Fox, a new freedom of information law, and, under current President Enrique Peña Nieto, a new National Anticorruption System (SNA), which, among other things, updates national and state laws to criminalize more acts, reduce immunities, and increase punishments—these measures have been insufficient, as reflected in Mexico’s increasingly poor showing on the Corruption Perceptions Index. AMLO identified corruption as Mexico’s most pressing problem and promised to bring about an honest and transparent regime that would be truly responsive to the country’s needs. And, in an encouraging sign, AMLO has brought in a diverse group of highly respected experts and activists, from all sides of the political spectrum, and has appeared flexible and open to dialogue. At the same time, though, he has displayed a puzzling blind spot for potential conflicts of interest, and his optimistic rhetoric has suffered from a lack of specificity, coherence, and concrete proposals.
AMLO’s most specific policy positions were set out in a speech announcing “50 general guidelines for the fight against corruption and the application of a politics of republican austerity.” Yet as Max Kaizer of the Mexican Competitiveness Institute has pointed out, relatively few of the guidelines refer specifically to corruption or impunity; the rest focus on austerity, governance, or improvements to existing policies. Of these 50 guidelines, we have identified 18 measures, in roughly five categories, that do seem geared toward fighting corruption:
- First, some of the guidelines seek to eliminate legal immunities for senior officials. Guideline 1, for example, states that the president can be tried for corruption, while Guideline 2 eliminates judicial protections for public servants. (This latter reform has already passed at the federal level but must be ratified by 17 states before it is enacted into law.)
- Second, some of the guidelines appear to call for expanding or strengthening legal prohibitions on corruption, conflicts of interest, and associated abuses of power: Guideline 3 calls for influence peddling, corruption, and fraud to become crimes rather than delinquencies; Guideline 26 calls for a prohibition on nepotism; Guideline 30 prohibits officials from fraternizing with contractors, donors, or investors involved in public matters; Guideline 31 prohibits public servants from using state employees for personal business without authorization; Guideline 32 states that public servants may not close roads, stop traffic, run red lights, or park in no parking zones, except in cases of emergency; and Guideline 36 bars public servants from enlisting the services of police or military forces without justification.
- Third, some of the guidelines appear designed to reduce corruption through prophylactic rules. Guideline 7 requires all public servants to publicly declare their assets and those of their immediate families. Guideline 46 states that senators and members of congress will no longer distribute funds discretionarily to their home states (a form of discretionary power that in the past has been used to generate kickbacks), and Guideline 48 prohibits the outsourcing of the drafting of laws, proposals, analyses, or recommendations (another possible source of kickbacks or other corrupt manipulation of legal drafting). A similar prophylactic measure can be found in Guideline 47, which prohibits gifts to public servants in excess of 5,000 pesos (about US$270). And Guideline 49 states that “[i]n trade and finance with international firms, preference will be given to those from countries whose governments are characterized by honesty and which punish, do not tolerate bribery or corrupt acts,” though it is unclear how this will be implemented.
- Fourth, some of the guidelines focus on reforms to the public procurement system in order to reduce corruption risk. Most notably, Guideline 44 states that public procurement will be consolidated, public, and overseen by citizens and the UN Office of Transparency, while the related Guideline 45 requires that public works contracts be offered via public bids and overseen by citizens and the UN. In addition, another guideline (50) appears geared toward preventing abuses by enforcement authorities, declaring that contracts granted via corruption will be reviewed and dealt with by legal means, without confiscation or expropriation of assets.
- Fifth, some of the guidelines focus on strengthening the authority and autonomy of the offices responsible for anticorruption enforcement. Thus Guideline 5 declares that the Electoral Prosecutor will be an impartial guarantor of corruption-free elections, and Guideline 6 states that the Anticorruption Prosecutor (an office created as part of the National Anticorruption System) will “not permit widespread impunity under any circumstance…. [and] will be able to act with absolute liberty and punish any person who commits a crime of this nature, no matter who it may be….”
Several of these proposals are promising, though many of them suffer from a significant lack of specificity, and without more fleshing out may not be all that effective. (For example, the emphasis on empowering the Anticorruption Prosecutor is commendable, but broad legal power alone is insufficient; the Prosecutor will also need a generous budget and sufficient staff.) What’s more, some have expressed concerns that some of the proposed measures may actually increase corruption. But speaking broadly, what we’ve seen so far about AMLO’s likely approach to fighting corruption suggests three shortcomings with respect to overall anticorruption strategy:
- First, both the rhetoric and many of the specific proposed guidelines fail to acknowledge the mechanisms and measures already in place or that have already been proposed. For example, AMLO has been broadly dismissive of previous anticorruption efforts in general, and of the National Anticorruption System in particular, regarding them as formal exercises by out-of-touch elites at best, and as smokescreens to distract from continued corruption and impunity at worst. These observations may not be entirely inaccurate, but rather than dismiss the National Anticorruption System altogether, it would be better to improve upon it, as some state legislatures (supported by NGOs) have done.
- Second, the guidelines tend to emphasize personal ethics, character, and exemplary leadership over structures, controls, and procedures. AMLO’s most persistent message has been that “stairs are swept from the top down” and that an honest presidency will permeate the entire government. But even supposing that AMLO is honest and that his personal integrity inspires others to follow his example, reliance on the president’s personal integrity is an unpromising long-term strategy. So far, AMLO has not proposed the structural changes required to avoid a rebound of corruption with the next president. True, some of the guidelines noted above do reflect an acknowledgment that institutional reform and effective mechanisms will be necessary, but there is no indication in these guidelines that actual policies or implementation strategies are even being considered.
- Third, though AMLO has declared his commitment to fighting corruption and insisting on accountability, his rhetoric and proposals so far suggest a preference for a centralized, “top-down” approach, with AMLO himself firmly in control. For example, AMLO did not subscribe to a proposal (#fiscaliaquesirva), advocated by some of the most prominent anticorruption organizations, to grant constitutional autonomy to the country’s attorney general. His position is that the executive needs a strong attorney general under his authority to effectively combat corruption and other entrenched practices. Although he claims to respect the independence of the attorney general, he appears to have won a concession that his three hand-picked candidates for attorney general be included among the ten candidates submitted by the Senate to the president, who under current law will then select the three finalists among whom the Senate will finally appoint the new attorney general. Forcing the Senate to choose among the three candidates pre-selected by the president means that whomever is chosen as attorney general will be indebted to the president. AMLO may not take advantage of that power, but there is no guarantee that future presidents would be as objective. Furthermore, many innovations in anticorruption policies and mechanisms will probably come from the local level (see here and here), but AMLO’s efforts to consolidate and centralize power might stop or slow down this promising venue for experimentation and development.
From all this, anyone looking can easily find cause both for optimism and for pessimism. It’s still too early to say what AMLO’s government will actually do, and no matter what his government does, it’s unlikely, perhaps impossible, that over the six years of his mandate Mexico will move from its current state to the lower level of corruption found in countries like Chile. But it is possible to start Mexico on a new path toward good governance. The transition period currently underway will be crucial in determining the form and substance of AMLO’s government, and during this period there are a few things to watch for to get a sense of how serious, and how effective, we can expect AMLO’s government to be. One indicator will be whether anticorruption activists and other civil society groups mobilize effectively and are heard by the right people in AMLO’s team, and whether policy agendas are based on transparent and objective evaluations. A more specific bellwether concerns the contents of the anticorruption policy proposals that the president of the National Anticorruption System is to deliver to AMLO by the end of the year, and whether AMLO accepts them. Anticorruption scholars, activists, international watchdogs, and other persons interested in ensuring that policies and institutions evolve in the proper direction should be particularly vigilant and promptly call out any undesirable developments.
Professor Palifka and Mr. Garcia,
Thank you for your post. As I was reading your post, I could not help but draw a few parallels between the Guidelines outlined by AMLO and the United Nations Convention against Corruption, specifically those regarding bribery and kickbacks received by public officials.
In the UNCAC, Articles 15-44 seek to criminalize and punish the illicit funds given to public officials in their political capacities. ALMO, through Guideline 6, seeks to establish an Anticorruption Prosecutor. Through this Guideline, ALMO seeks to put into action the very idea that the UNCAC seeks to impose on its signatories. While Mexico does not necessarily “need” the Anticorruption Prosecutor to criminalize crimes like bribery or embezzlement, it will allow Mexico to centralize its fight against corrupt officials. By having an Anticorruption Prosecutor rather than assigning such crimes to the normal prosecutor, ALMO may be preventing further corruption from happening—such as paying off the government prosecutor to dismiss charges or lessen the charge. Although the Anticorruption Prosecutor’s duties are a bit vague at this time, its best to remain hopeful that ALMO will implement this plan along the same lines as the UNCAC.
The other Guidelines mentioned in your post—such as prohibiting discretionary funding, outsourcing of legal drafting, and caps on gifts to public officials—help to outline some of the very crimes the Anticorruption Prosecutor could be prosecuting. By having an impartial Anticorruption Prosecutor, he or she can monitor the activities of the public officials in order to be sure the Guidelines are being followed.
In all, with an optimistic view, it seems that Mexico may be on a pathway to a less corrupt future. ALMO is going for the top down approach by first working to prevent corruption at the governmental level. If he uses the UNCAC as an outline for his future as president, I am hopeful there will be an upward trend in the perception of corruption by Mexicans as well as other governments. Of course, there is always the possibility ALMO will go astray. If that occurs, I hope, just as you do, that scholars, activists, and international watchdogs will hold him accountable for any unsavory developments.
I feel like riding on the way of anti-corruption is the latest trend in politics. Unfortunately, not in all countries – some countries are currently facing a pretty much opposite decision in election. Also, unfortunately, since anti-corruption itself is a very broad concept, I have seen politicians getting away with “anti-corruption” proposals that really have little flesh quite often… That being said, I do hope that this indicates a more transparent way forward for Mexico.
I was curious if there is anything more on the proposed procurement initiative. Has the UN agreed to be made part of it? I have never heard of the UN Office of Transparency and neither have I heard of countries having international organizations overseeing public procurement.