13 May 2022 –
The topic of sworn asset and conflict of interest declarations is particularly interesting in the context of Latin America. Most, if not all countries in Latin America have some form of requirement for public officials to present asset declarations upon taking office, periodically, and after leaving office. While laws between countries vary, this is a tool that is present in all the governments’ anti-corruption toolkits across the region.
More than 30 member organizations and affiliates of the UNCAC Coalition from Latin America and the Caribbean participated in a 6th Regional Meeting, aimed at discussing their experiences and challenges in working to make sworn asset and conflict of interest declarations more effective tools to fight corruption.
What does the UNCAC say about sworn asset declarations? It mentions the need to adopt measures to declare public officials’ assets and conflicts of interest in Articles 7.4 and 8.5 and again refers to the importance of sworn asset declarations as a tool to avoid the intermingling of public and private interests in Article 12.2. All of these articles, however, use non-binding language, which severely weakens the obligation of a strong legal framework in these areas in the States Parties.
A regional perspective
Taking a closer look at each country context reveals that while certain legislation on asset declarations is in place in most countries, certain officials are not required to present sworn declarations; the timeliness and quality of the declarations presented is not verified or sanctioned if they contain errors or false information; sworn declarations are not made public or available to anti-corruption bodies; and, importantly, these declarations are not analyzed, cross-checked with available data, monitored or acted upon by responsible authorities. The challenges are numerous and depend on the country context, but overall, some or most of these are apparent in Latin American and Caribbean countries.
Presentations were held by three speakers on the following national contexts:
The first presentation by Cecilia Cortés Quirós of Costa Rica Íntegra spoke to several challenges that Costa Rica has faced in trying to make sworn asset declarations a more viable anti-corruption tool. Cecilia noted that while sworn asset declarations are required and very demanding of public officials, these are not made public or, in some cases, made accessible for anti-corruption authorities outside the judicial branch. This is a problem, because relevant authorities, as well as NGOs and media organizations cannot actively cross-check that officials declared assets and compare it to what they own in reality. While she is optimistic that new access to information reforms might lead to better access to these documents, she is not holding her breath. Furthermore, she noted that despite conflict of interests not being regulated or mandatory in Costa Rica, some public sector bodies are adopting innovative tools to better gauge the risks of conflicts of interests to the public interest. Within these tools, Cecilia mentioned a conflict of interest simulator, a tool developed by the Comisión de Transparencia y la Oficina de Cumplimiento del Poder Judicial, where civil servants in the judicial sector can determine if acting on an issue might derive in a conflict of interest.
Paulina Ibarra from Fundación Multitudes focused her presentation on her organization’s position regarding reforms proposed for the 2014 lobby law. Under the current legislation, vague language regarding what constitutes a lobbyist has led to unethical interaction between public officials and private interest groups’ paid representatives. Conflict of interest declarations and lobby regulations go hand-in-hand, as both tools compliment each other and permit cross-referencing information to determine if decisions were made “under the influence” of lobbying.
Fundación Multitudes actively advocates for the development of a clear minimum standard. In particular, they stress that a clear definition of lobbyists and “interest groups” is necessary to avoid voids in enforcement. To complement this definition, they believe that a mechanism should exist to verify a non-arbitrary or neutral application of the law, as well as ample training for public officials. Finally, Paulina spoke about an issue that she believes is under-reported in regards to lobbying laws, which is that there have been various instances where personal data of organizations and activists requesting information was wrongly published. She notes that a reform of the law must address the vulnerability of personal information in the current system.
Mariel Miranda from Transparencia Mexicana provided a brief panorama of the Mexican context and her organization’s experience in advocating for more transparency around asset, interest and tax compliance declarations. Transparencia Mexicana’s 3/3 initiative aims to pressure candidates of Federal and State elections to present sworn asset, interest and tax compliance declarations, even though no law obliges them to do so. While thousands of candidates have presented such declarations between 2015 and 2021, many other thousands have not. She highlighted that information from public registries for assets, despite some issues regarding access, are available to NGOs and journalists to cross-check asset declarations.
Regarding this last point, another participant added that regardless of the publicity of public registers, beneficial ownership transparency is still lacking in Mexico, thus a major piece of the puzzle is missing to determine effective veracity of sworn declarations. Only 30% of errors in the presentation and content of sworn declarations are effectively addressed. This will be Transparencia Mexicana’s next big focus.
Discussion on similarities and joint advocacy across the region
Members and affiliates of the region compared country situations in the subsequent discussion round. A participant from Participación Ciudadana from the Dominican Republic drew parallels with the Mexican experience, noting that her country has historically seen very few sanctions for erroneous or incorrect presentations of sworn declarations. Yet, when Participación Ciudadana sought these declarations, they found many cases where action should have been taken by relevant authorities due to errors in their content.
A participant from Fundación Ciudadanía y Desarrollo spoke about lobbying and conflict of interest regulations which are currently being considered by Ecuadorian legislators. She noted that, with the help of Costa Rica Íntegra, they have been pressuring the National Assembly to enact stricter regulation. For years, they have rung out alerts when parliamentarians are perceived to have conflicts of interest, which has convinced the CSO of the need to better regulate this topic.
Several participants from Mexico and Puerto Rico highlighted that a differentiation should be made between interest declarations and conflict of interest declarations, the former being something to be declared by public officials and the latter being determined by relevant anticorruption or judicial authorities based on objective criteria. In the context of the U.S.A., the CSO Centro de Gobernanza Pública y Corporativa is most concerned about the lack of control of conflicts of interests in the judicial branch. The increasingly partisan political appointments of judges has notably weakened due diligence in favor of fast-tracking appointments.
Conclusions and way forward
An important takeaway from the meeting, which almost all participants agreed on, was that presenting sworn declarations is not enough to curb corruption. It is crucial that first, sworn asset declarations be made public, second, that relevant information from public registries and regarding beneficial ownership be made public, and third, that anti-corruption authorities must actually use sworn declarations to monitor and sanction errors, as well as to better investigate corruption.