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

Author(s): Charles H. Roberts
Date: March 1, 2021
Country: Colombia
Language(s): English

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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.

References / Notes

[1] https://www.corteidh.or.cr/docs/casos/articulos/seriec_406_esp.pdf

[2] Other government oversight agencies include the Defensoría del Pueblo (Office of the Human Rights Ombudsperson), Contraloría General de la República (Office of the Comptroller General, and Fiscalía General de la Nación (Office of the Attorney General). In Colombia, the Office of the Inspector General is the highest body of the Public Ministry. The functions it performs unfold in two main areas: (1) Protecting citizens’ fundamental rights before any authority and (2) carrying out disciplinary oversight of the conduct of public officials, which includes a set of interventions and sanctions. The Office of the Comptroller General is the highest fiscal oversight body; its objective is to oversee the proper allocation of public funds and public goods, to which end it monitors private and public enterprises that manage such resources to assess and determine fiscal liability when public officials’ actions lead to pecuniary damage of public resources (for which it also imposes sanctions), and carries out actions to recover the public funds in case of corruption or mismanagement. Finally, the Office of the Attorney General carries out criminal investigations to present to the courts and seeks the convictions of those accused of having committed crimes, including crimes against the public administration. The Office of the Human Rights Ombudsman is tasked with advocating on behalf of the human rights of the population; like the PGN, it is part of the Public Ministry. The specific functions of the PGN are spelled out in Articles 277 and 278 of the 1991 Constitution of Colombia.

[3] Interviews, Gustavo Gallón, director, Comisión Colombiana de Juristas, December 2013 and April 2020.

[4] “The PGN played a major role under the 1886 Constitution, when there was no Office of the Attorney General or Office of the Human Rights Ombudsperson [both established in the 1991 Constitution] and it was necessary for there to be a public official, extremely respectable, to protect human rights, oversee the conduct of public servants, and constitute a check on presidential power.” Rodrigo Uprimny, https://www.elespectador.com/opinion/sobra-la-procuraduria-columna-329128

[5] Article 276, 1991 Constitution of Colombia. The Council of State (Consejo de Estado) is the country’s highest administrative court.

[6] These events are described, inter alia, in https://www.coljuristas.org/documentos/libros_e_informes/desafiando_la_intransigencia.pdf

[7] Article 277(6).

[8] https://www.rcnradio.com/colombia/en-diez-anos-la-procuraduria-ha-destituido-791-funcionarios-elegidos-por-voto-106044

[9] https://twitter.com/PGN_COL/status/488685766332399616 Many different figures can be found in press accounts. See also https://www.rcnradio.com/colombia/en-diez-anos-la-procuraduria-ha-destituido-791-funcionarios-elegidos-por-voto-106044, https://www.eluniversal.com.co/politica/procuraduria-ha-suspendido-302-alcaldes-y-29-gobernadores-en-ano-y-medio-32195-AQEU111302, and http://www.eje21.com.co/2016/09/los-sancionados-por-el-procurador-alejandro-ordonez/

[10] For example: “The inspector general did not hide his biases, he imposed sanctions on those whose thinking was different from his own, he absolved – with no scruples – persons close to him implicated in crimes related to paramilitary groups. And all that handling of favors, appointments, apart from his openly ideological statements in public venues when he is speaking because of his office, should be investigated.” Gustavo Gallón, https://www.semana.com/nacion/articulo/gustavo-gallon-habla-sobre-gestion-del-destituido-procurador-alejandro-ordonez/492859

[11] International human rights bodies that hear individual petitions and cases have generally adopted interim measures by which states are called upon to take steps to protect the person or persons in question in the face of serious and urgent situations presenting risk of irreparable harm. Before the IACHR these are known as “precautionary measures” and are provided for at Article 25 of its Rules of Procedure.

[12] Article 23(2).

[13] https://www.oas.org/en/iachr/decisions/pdf/2014/MC374-13-En.pdf. Eventually the Commission ruled on the merits in favor of Petro and the case was then referred to the Inter-American Court of Human Rights, which decided the case in July 2020. The decision was reported in August 2020 (https://www.corteidh.or.cr/docs/casos/articulos/seriec_406_esp.pdf). The Court ruled in Petro’s favor and ordered Colombia to refrain from removing elected officials who have not been convicted of a criminal violation; and it ordered Colombia to indicate, within one year, what it has done to comply with its judgment.

[14] Article 93, 1991 Constitution.

[15] Eventually Ordóñez’s second election as Inspector General was annulled by the Council of State – Colombia’s highest administrative law court – because several close relatives of members of the Supreme Court (which nominated Ordóñez for his second term) and the Senate (which then elected him) had been appointed to high-level positions within the PGN, yet those members failed to recuse themselves. As a result, Ordóñez was removed from office in September 2016, four months before the end of his second term.

[16] https://www.procuraduria.gov.co/relatoria/media/file/flas_juridico/1892_CE-Rad-2014-00360-00%20GUSTAVO%20PETRO.pdf

[17] Interestingly, Carrillo himself was barred for life from holding public office by an earlier Inspector General related to his role when Pablo Escobar escaped from prison in 1992; at the time Carrillo was Minister of Justice. However, he succeeded in having this bar lifted by Inspector General Maya in the 2000s. https://www.semana.com/opinion/articulo/gonzalo-guillen-que-paso-con-la-condena-sobre-el-procurador-fernando-carrillo/514133, and https://www.las2orillas.co/la-catedral-de-pablo-escobar-el-lunar-en-la-vida-de-fernando-carrillo/

[18] https://www.hoydiariodelmagdalena.com.co/archivos/100793

[19] See, e.g., https://www.elespectador.com/opinion/sobra-la-procuraduria-columna-329128, and https://www.dejusticia.org/la-procuraduria-innecesaria-o-peligrosa/

[20] See, for example, https://lasillavacia.com/elblogueo/blog/mas-sobre-la-destitucion-de-petro-46454 and  https://razonpublica.com/que-hacer-con-la-procuraduria-lecciones-despues-de-ordonez

[21] https://www.coljuristas.org/columnas_de_la_direccion/columna.php?id=105

[22] https://www.eltiempo.com/politica/transparencia-internacional-alerta-de-creciente-concentracion-del-poder-ejecutivo-en-colombia-535786; https://razonpublica.com/duque-controla-los-organismos-control

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AUTHOR INFORMATION

Charles H. Roberts

Charles H. Roberts is a lawyer and translator based in Washington, DC.

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