Top-down Accountability vs. Electoral Democracy: The Case of Colombia’s Inspector General

Versión en español: La rendición de cuentas desde arriba versus la democracia: El caso de la Procuraduría General de la Nación de Colombia

The judgment of the Inter-American Court of Human Rights of July 8, 2020 in the case of Petro Urrego v. Colombia [1] found that political rights were violated as the result of a disciplinary sanction of removal from office imposed by an oversight agency in charge of seeing to the protection of human rights. This article was written in the first quarter of 2020, prior to the decision of the I/A Court HR in the Petro Urrego case.

Of Colombia’s various institutions that oversee the conduct of public servants [2], none has the historical roots or broad powers of the Procuraduría General de la Nación (hereinafter PGN, or Office of the Inspector General). Simón Bolívar, leader of South American independence movements, is credited with the idea of such an institution, which he considered necessary as a check on the corruption of public officials.[3] Its primary mission is disciplinary, to investigate the conduct of all public servants and to impose sanctions when it finds a breach of the disciplinary code. Sanctions include reprimand, fine, suspension from office, removal from office, and disqualification from holding public office.

In the last two decades this oversight agency has been especially active, using its powers to expel numerous elected officials from office based on administrative breaches not necessarily involving any criminal wrongdoing, and without any due process – the Inspector General investigates possible “disciplinary” wrongdoing, makes the determination as to liability, and decides on and imposes the sanction. The exercise of this power in relation to elected officials suggests that this particular form of top-down accountability may well be at odds with the political rights inherent to democratic government that Colombia has undertaken to uphold by ratifying international human rights treaties.

Under Colombia’s 1886 Constitution, which remained in force until mid-1991, the Inspector General was appointed by the President.[4] Under the 1991 Constitution, the Inspector General is elected by the Senate from a three-person slate made up of nominees put forward, one each, by the President, the Supreme Court, and the Council of State.[5]

In the 1980s the PGN played an important role addressing corruption and human rights issues in high-profile cases. Two emblematic moments in this regard include, first, the 1983 report on the death squad Muerte a Secuestradores (MAS: Death to Kidnappers), which brought together landowners, drug traffickers, and military officers. The report named 163 persons, 59 of them members of the Colombian armed forces. And second, in the wake of the November 1985 incident in which a guerrilla commando from the M-19 took over the Palace of Justice in the heart of Bogotá, the PGN produced a report on the response by Colombian government security forces, pointing to possible violations of international humanitarian law and possible forced disappearances when its forces regained control of the judicial complex. This report broke new ground simply by raising these issues as areas of concern. In the late 1980s, as forced disappearances and extrajudicial executions escalated, President Virgilio Barco sought to have the PGN play a more prominent role in tackling human rights abuses.[6]

The PGN’s use of its power to remove mayors and governors was not in direct tension with democratic governance until relatively recently – because they were appointed from above, by the President. Mayors were first elected in 1988; governors followed in 1992, as part of implementing the 1991 Constitution. The 1991 Constitution of Colombia specifically affirms that the PGN’s authority over all public servants includes elected officials.[7] As a result mayors, governors, legislators both national and regional, and local council members have been banned from holding any public office for many years when the Inspector General has found a disciplinary breach. The agency’s power to overturn voters’ decisions is distinctive because it is not subject to political or judicial review, is not based on criminal convictions, and offers only limited administrative remedies to elected officials who consider themselves to have been unjustly purged.

The agency’s power to overturn voters’ decisions is distinctive because it is not subject to political or judicial review, is not based on criminal convictions, and offers only limited administrative remedies to elected officials who consider themselves to have been unjustly purged.

In the 1990s the PGN focused on investigations and sanctions related to the rising power of drug cartels, a continuing human rights crisis, and the corruption involved in traditional clientelist politics. In the 2000s the participation of paramilitary leaders in electoral politics added another set of matters under the purview of the PGN. Indeed, under Inspector General Edgardo Maya (2004-2008), 460 elected officials were removed – 1 senator, 2 representatives (both from the National Congress), 428 mayors, and 29 governors.[8]

Maya’s successor, Alejandro Ordóñez, continued removing elected officials in large numbers –he was reported by his own office to have removed 20 members of Congress (senators and representatives), 308 mayors, 37 governors, and 149 local council members from January 2009 to July 2014. [9] Ordóñez came under close scrutiny for using his position to favor his political allies and punish his adversaries. [10]

The wave of removals of mayors came into sharpest public focus when on December 9, 2013, Mr. Ordóñez announced that he was setting in motion the process to remove the mayor of Bogotá (Colombia’s capital and largest city), Gustavo Petro, on grounds of mismanaging a public trash removal crisis one year earlier. In removing him he also banned Petro from holding any public office for 15 years, which in effect would have ended his political career. Mr. Petro challenged the action by the Inspector General by turning to international law for recourse. He asked the Inter-American Commission on Human Rights (IACHR) to issue interim measures [11] to protect his political rights—which he argued were on the verge of being violated—under the American Convention on Human Rights, to which Colombia is a party. The Convention provides for “the right to be elected in genuine periodic elections,” which may be regulated on the basis  of “sentencing by a competent court in a criminal proceeding,” [12] but not by a non-judicial body in a disciplinary proceeding. The IACHR issued the measures sought and told the government to immediately suspend the effects of the decision to remove the mayor and further limit his political rights.[13] Because Colombian law defers to international law in such matters[14], five weeks after being removed from office Petro was reinstated as mayor of Bogotá.[15]

While in 2017 the Council of State issued a final ruling in the Petro case noting the IACHR decision on political rights [16], Inspector General Fernando Carrillo [17] continued removing and barring elected public officeholders even in the absence of any criminal conviction.[18]

In the wake of the announcement that Petro would be removed from office in late 2013 there was a round of public debate in Colombia regarding the scope and powers of the PGN. Proposals range from abolishing it altogether, as a redundant institution that threatens democracy and human rights (particularly in relation to the tenure of elected officials)[19], to reining in the scope of its authority and size; and adopting a meritocratic rather than political process for appointing the Inspector General.[20] For example: “Barring persons from performing public functions, in extreme cases (which the Disciplinary Code calls faltas gravísimas dolosas [very serious intentional  breaches] or those realizadas con culpa gravísima [carried out with very gross negligence]), is a state power that should be preserved, but as currently regulated it is at odds with the American Convention on Human Rights…. One solution would be for the inspector general, when considering that the conditions are met for imposing such a sanction, to report the case to the respective judge, and that the complaint be addressed by a special procedure.” [21]

Mindful of the current moment, the judgment in the Petro case offers Colombia an opportunity to adjust its domestic law so that elected officials can continue in office so long as they are not convicted by a criminal court. Colombia should be able, by such a reform, to have rules of the game in which more accountability does not endanger democracy. It is all the more urgent that disciplinary oversight not become a mechanism for removing elected officials from their positions in contexts in which democratic checks and balances may be weakened due to oversight agency chiefs not enjoying the necessary independence from those whose performance they oversee. [22]

The author wishes to thank Gustavo Gallón and Rodrigo Uprimny for sharing their thoughts on the issues addressed; Professor Jonathan Fox, director of ARC, for the impetus; and Mariana Cepeda, who works with ARC from Bogotá, for her valuable input and review of the Spanish-language version.

Esta publicación también está disponible en español aquí.