19 January 2022 –
Colombia has made important progress towards developing normative legal frameworks for the implementation of articles of Chapter II (Preventive Measures) and Chapter V (Asset Recovery) provisions of the United Nations Convention against Corruption (UNCAC), but several obstacles persist, a new civil society report authored by Transparencia por Colombia finds. The CSO produced its report, which is intended as a contribution to the UNCAC implementation review process in its second cycle, with technical and financial support from the UNCAC Coalition.
The Secretariat of Transparency is the entity in charge of leading anti-corruption efforts in Colombia. Despite the need for greater human and financial capacity to effectively fulfill this role, the country has an Anti-Corruption Statute and a Comprehensive Anti-Corruption Policy in place, the latter of which was in force until 2018. While drafting this parallel report, two new policies entitled “Transparency, Integrity, Legality, Co-responsibility, and Innovation Policy: Towards an Open State” and “Strategy to Combat Corruption Associated with Drug Trafficking” were being drafted, the first of which was approved in December 2021. A greater emphasis needs to be placed on the effective implementation of such policies.
There are several anti-corruption issues which still need to be legislated in Colombia, for instance, the protection of whistleblowers, criminal liability of legal entities for acts of corruption, reparations for damages caused by corruption, improvements to the country’s public procurement processes, structural reform of the public employment system, better methods for the selection of directors of control bodies, a system of sanctions for non-compliance with the Access to Information Law, among others.
The official UNCAC review process in Colombia was scheduled to begin in 2019. Civil society organizations have not been consulted in the current review process reviewing Chapters II and V of the UNCAC, nor has information on the current status of the review been shared with Transparencia por Colombia or the UNCAC Coalition despite several attempts to obtain this information. The review documents will be available on Colombia’s UNODC country profile page once they are finalized. Read the full civil society report in English here. The original version of the report in Spanish can be found here.
The following are some of the main findings according to topic:
Public sector employment
There are laws that regulate the administrative career which recognize merit, equality, impartiality and transparency as some of its key principles. The Administrative Department of the Civil Service (DAFP)’s Public Employment Information and Management System, (SIGEP) contains information on public service and government contractors, as well as information on conflicts of interest, assets and income. It is available to the public, but still needs to be adapted to open data standards.
Despite regulation of and good practices in public sector employment, they have been difficult to implement because competitions tend to be slow and there are budgetary limitations that hinder the ability to hire and maintain administrative career personnel in the institutions. Other weaknesses in public employment are the arbitary overuse of direct hiring of staff under the provision of services, the lack of possibilities for promotion to managerial positions and the high staff turnover rate in the institutions. The implementation of the National Integrity System, created in 2020, is crucial, as it seeks to implement ethical standards in public employment, and ensure that beyond the promotion of values, it is possible to provide clear guidance to public servants on how to proceed in situations where ethical dilemmas or conflicts arise.
Political financing is of both public and private origin in Colombia. The country has laws and regulations in place governing campaign financing ceilings, donation limits for private parties to avoid being disqualified from contracting with the elected president or other institutions, rules on the lawful origin of resources and measures for accountability of candidates, political parties and movements. Candidates and political parties are obliged to use the electronic tool called Cuentas Claras (Clear Accounts) as the official mechanism for filling out the income and expenditure ledger.
However, there are several challenges related to the application of the law, such as delays and difficulties in accessing public financing, the context of drug trafficking and criminality that permeates political campaigns, difficulties in monitoring the origin of resources, and the absence of mechanisms for reporting donations to political campaigns by private parties. Examples of recent campaign financing scandals are the ones around Odebrecht and the financing of the presidential campaigns of Juan Manuel Santos and Óscar Iván Zuluaga, as well as the alleged illegal financing of the current president’s political campaign in 2018, also known as Ñeñepolítica (find more information here in English and here in Spanish).
Colombia has no regulations on whistleblower protection in place. Recently, two bills on this topic were presented but were unsuccessful in Congress. Although there are channels for reporting acts of corruption, such as the recently created Colombian Anticorruption Portal (PACO) and the Institutional Transparency and Anticorruption Network (RITA), they generally lack the guarantee of basic elements for reporting, such as confidentiality of data, anonymity, security of the reporting parties and follow-up of the reports.
Colombia has broad legislation that regulates the purchases made by the State and an Electronic System for Public Procurement (SECOP), which allows for information to uploaded and the contractual information of the country to be publicly consulted in open format. A second version of this electronic procurement system (SECOP II) which enables access to online contractual processes is currently being rolled out in public institutions and is expected to replace the original one in the next few years.
Nevertheless, the country’s legislation on public procurement facilitates, and even promotes, the arbitrary use of direct contracting through legal concepts such as the provision of professional services, special regimes or manifest urgency. It is necessary to unify the regulations and regulate the conditions to access direct contracting more strictly.
The country has legislation that determines how public resources will be used and entities in charge of the respective follow-up. Although Colombia has an Economic Transparency Portal with general information on budgets in place, there are significant challenges in terms of access to information, as there is no unified budget information system, detailed information on the use of public resources is not published, nor is information on budget collection or tax benefits granted to private parties.
Access to information
Colombia‘s Law 1712 on Transparency and Access to Public Information of 2014 has been classified as “fundamental” and has achieved significant institutional and cultural changes regarding this right. The biggest challenges that remain are the accessibility of information to different social sectors, a greater presence of the oversight body in terms of promoting the law and defining and imposing sanctions for non-compliance; and the application of the law to obligated subjects other than public entities, such as political parties, private companies, foundations and other subjects that use public resources.
Civil society participation
In Colombia, civil society participation is regulated both constitutionally and legally. While some progress has been made in defining mechanisms and instances for citizen participation, greater openness to participation in the institutional framework as well as more protection for participating are urgently needed. More than 480 social leaders have been assassinated since the signing of the peace agreement in 2016 for their work defending human rights, the environment, the rights of indigenous and Afro-descendant communities and safeguarding their territory from illicit crops, and there have also been cases of censorship and violence against journalists who report cases of corruption in Colombia.
Independence in the judiciary
In May 2020, the conflict of interest regarding the friendship between the President of the Republic and the Attorney General of the Nation was evidenced by the public, since the President is the one to shortlist candidates for this position of power. However, institutions have not acted upon this conflict of interest. There have also been corruption scandals associated with the manipulation of judicial processes by magistrates of the Republic to favor the interests of third parties. The greatest challenges in this regard persist in the modification of the manner in which the Prosecutor General is appointed, the updating and application of ethical guidelines, the definition of regulations to deal with existing conflicts of interest, the incorporation of transparency, accountability and anti-corruption measures, and the implementation of whistleblower protection mechanisms in the judicial branch.
Private Sector transparency
There are no clear regulations for the application of the Transparency Law in private companies that manage or intermediate public resources, nor are there any regulations for the establishment of protection measures for those reporting acts of corruption in the private sector.
Anti-money laundering is broadly regulated in Colombia and several responsible entities. Due to the Colombian context, where there is a high prevalence of criminal activities such as drug trafficking, illegal mining, wildlife trafficking and timber trafficking, institutional efforts in this regard fall short. The most important challenges have to do with the recognition and alignment of anti-money laundering actions to the corruption risks associated with this activity, according to the methodological recommendations of the Financial Action Task Force of Latin America (GAFILAT), the establishment of more rigid control measures at customs posts, and the general strengthening of anti-money laundering actions that usually finance criminal activity or facilitate corruption.
In terms of measures for the direct recovery of property and confiscation tools, Colombia’s extensive legislation regulates asset forfeiture procedures in accordance with constitutional principles and the right to private property. However, these processes tend to be slow due to high judicial congestion, and there is no published information on seized assets, the status of seizure processes, and the destination of seized assets.
Regarding international cooperation for confiscation purposes, Colombia is part of numerous multilateral instances, and party to several international treaties for the management of assets and internal regulations that regulate the subject; and for this reason, the normative dispersion is high. There is also no publicly available information on the status of the processes or results of international judicial cooperation exercises.
In its report, Transparencia por Colombia makes several key recommendations for priority actions to be taken to ensure the full implementation of the UNCAC in Colombia, for example:
- Promote the legislation of issues related to the fight against corruption such as the protection of corruption whistleblowers, the criminal liability of legal entities for acts of corruption and the reparation of damages caused by corruption.
- Strengthen the technical, administrative and budgetary capacities of the Secretariat of Transparency in its role as coordinator of public policies to fight corruption and legally reform the anti-corruption bodies created by the Anti-Corruption Statute, in order to provide them with a fixed budget (especially the National Citizen Commission for the Fight against Corruption) in order to make their work more dynamic and establish accountability obligations and access to information on their activities.
- Carry out a general reform of public employment that promotes efficient and merit-based entry into public service, allows for corrective measures to be taken with respect to administrative career employees who have unsatisfactory performance, promotes labor mobility and provides incentives to public servants to improve the conditions of the people working in the public sector.
- Promote legislation that obliges political campaign contributors to register their donations, loans or any other type of contribution to parties, movements and candidates (this report must be interoperable with the Cuentas Claras application for reporting political campaign income and expenses).
- Strengthen the processes of prevention and detection of illicit money in political campaigns, through regulations on donations from recently created legal entities, the understanding, prevention and prosecution of electoral crime as contemplated in the Electoral Criminal Policy and the promotion of public scrutiny of the exercise of the vote.
- Improve the procedures for collecting information and publishing resumes, declarations of conflict of interest and declarations of assets and income, so that the databases for public consultation can be reusable, processable and interoperable.
- Provide support and awareness mechanisms to citizens and public servants on the technical and evidentiary requirements of complaints to facilitate investigation and sanction exercises. Create a unified information system that provides security and confidentiality guarantees to those reporting acts of corruption within the framework of the Institutional Anticorruption Network (RITA). Create mechanisms to follow up on the status of corruption complaints filed through RITA and other control and investigation entities.
- Promote changes in the contractual regulations in order to unify the country’s contracting legislation; regulate the arbitrary use of direct contracting and contracting by special regime.
- Strengthen the Economic Transparency Portal by including detailed budget information for each of the public entities, as well as information on tax collections and benefits granted to private companies.
- Establish a sanctions regime for non-compliance with the law on access to public information. Define methods and procedures for non-traditional regulated entities for the publication of the information described in Law 1712 of 2014.
- Promote a modification to the selection process of the Prosecutor General of the Nation, eliminating the shortlist given by the President of the Republic, as this may promote possible conflicts of interest between the Executive and the Judiciary.
- Legally define mechanisms for processing conflicts of interest, especially between the executive branch and the judiciary.
- Define methods and procedures for the private sector in order to comply with the requirements established in Law 1712 of 2014.
- Adjust the Anti-Money Laundering and Anti-Terrorist Financing supervision systems and tools to the risk-based approach, in accordance with GAFILAT recommendations, and especially take into account the risk of corruption. Strengthen measures against the laundering of assets and money laundering, especially in the context of the fight against drug trafficking, since these processes are used to refinance criminal activities and corruption.
- Strengthen the judicial investigation processes to expedite judgments on forfeiture of ownership.