Mexico Wins: Anti-Corruption Reform Approved

Mexico just approved an anti-corruption reform that required changing 14 constitutional articles, drafting 2 new general laws, and reforming five more. This is not minor. The reform is, by far, the most encompassing system to identify and sanction corruption that the country has ever had and its effects will be felt quite soon.

In this text, I present the story of how Mexico got here and provide an assessment of the virtues and challenges of this change.

The Government tries to fight corruption

The need to create an entity to fight corruption was among Mexico’s policy priorities, at least rhetorically, since well before the arrival of Enrique Peña Nieto to the presidency.  However, the first of the 266 commitments that Peña Nieto had made during his campaign was to create a “National Anti-Corruption Commission” (NAC).

Peña Nieto presented a bill to create the NAC in November 2012, but the proposal was poorly received by public opinion. Experts and civil society organizations (CSOs) considered it dysfunctional because the proposed NAC was a top-bottom entity (unable to coordinate efforts between the many state and federal entities) and most importantly, lacked real autonomy from other branches of power. The bill remained idle in Congress without approval or real discussion until the end of 2014.

Civil Society breaks in

Disappointed by the unresponsiveness of Mexico’s federal government, starting in 2015, experts, academics and transparency-related CSOs gathered and organized to take the battle against corruption into their own hands.

Civil society groups held closed meetings with Mexican authorities to reject NAC and instead, advocated for the creation of a “National Anti-Corruption System” (NAS). The NAS will be a coordination entity that brings together institutions that were already in place, and that had capacities to impede corruption, but were operating in fractured ways. More than being an institution commanded by a “czar,” the NAS would be an entity regulated by a citizen board and armed with autonomous prosecution and investigative capacities. Furthermore, the proposed system would need to recognize the role of private citizens in promoting anti-corruption efforts, creating sanctions not only for public servants but also for private contractors that engaged in corrupt practices.

The impact of experts and civil society groups was impressive. Just a few months after this hands-on approach had started, a constitutional reform to create the NAS was enacted by Mexico’s president.[1]

Yet, the fight was far from over. To become constitutional law, the reform approved by the federal congress needed to be validated by a majority of all Mexican state local legislations.

Civil society took the lead again. To pressure for such validation, a large number of civil society groups created a digital tool called the “anti-corrupt-o-meter,” a digital clock that counted the days that every state congress took to discuss and approve the constitutional reform (The Economist, 2015). The clock became viral in social networks and the NAS reform was approved by most state legislatures in just weeks. 

By May 2015, Mexico had approved the full creation of a NAS throughout Mexico’s territory.

Civil Society takes over

Once the NAS was enacted, in order to properly implement it, the creation of two new general laws and the reform of five more were required.

Mexico’s CSOs, academics and experts decided to take an even more hands-on approach than before. In early 2016, they gathered, not to negotiate with the government the characteristics of the laws that they thought would be most effective to fight corruption, but to elaborate on them themselves.

CSOs and experts used a recently created Mexican legal mechanism called the “citizen initiative” to draft the laws themselves and to pressure the Congress to discuss them.

More than twenty experts worked on a draft of NAS’ secondary laws and publically presented it to the press as a “citizen initiative” on February 2nd, 2016. A “citizen initiative” is a legal figure that allows citizen groups to present a bill to Congress, and that obligates Congress to discuss it, if the initiative is backed by the signatures of 0.13 % of the electorate --that is about 120 thousand signatures in hard copy along with detailed information from the photo ID of all those signing it.

In just a couple of months, civil society groups managed to gather more than five times the number of required signatures for the citizen initiative, named 3de3 or 3for3, to be discussed in Congress. Students, citizens and business communities were on board. Employers’ unions like COPARMEX asked their members to sign the citizen bill. Important Mexican radio stars like “El Sopitas,” Fernanda Familiar, Pamela Cerdeira and many more, talked about it on their daily shows. Activists, academics and columnists discussed it endlessly.  

The Mexican Senate started discussing the citizen initiative last April 11th, after 630 thousand signatures supporting the citizens’ bill were officially presented in March of 2016.

Unlike any other senate bill, citizen organizations required that the discussion was held in totally public ways. Facing such overwhelming citizen backing, senators had no option but to agree. All debates were TV transmitted and loyally followed by many citizens via the web. It is fair to say that politicians looked uncomfortable and representatives of CSOs and academics looked inexperienced.

Anti-Corruption Reform is approved twice

In a congressional session that was prolonged until 2 am, the Senate approved the anti-corruption legislation but changed one of its most symbolic articles: the one that regulates public disclosure of assets by government officials. The approved legislation allowed officials to disclose their assets in private documents (not publicly) in order to protect their privacy. In addition, it was made mandatory for public contractors and all citizens receiving benefits from the government (from large private infrastructure contractors to recipients of cash transfer programs or scholarships) to disclose the same three declarations (assets, interest and tax compliance) that public officers were mandated to present.

The approved legislation was viewed by entrepreneurial organizations and confederations as a vendetta for supporting and promoting the citizen initiative.  By making declarations mandatory for private citizens, many businesspeoplewould technically be required to present their own 3for3 declarations. Some calculated this would be about 37 million people, and many private and foreign investors.

Outrage followed. Wearing suits, the employers’ organizations like COPARMEX and businessman protested in the streets. Twitter flowed with Mexican citizens’ asking President Peña Nieto to veto the laws, and to approve the secondary rules of NAS just as civil society groups had first drafted them. Business sectors threatened to promote a massive amount of appeals on the grounds of unconstitutionality.

Ultimately Peña Nieto did indeed veto the legislation, asking Congress to discuss it one more time. They did and approved a new version of the anti-corruption reform on July 6th, 2016.

What’s next?

The final anti-corruption reform does not have a mandatory requirement for private citizens to present their three declarations, only for officials. Furthermore, it allows officials to disclose their assets in private documents, not in public as civil society groups had first proposed, if they believe their privacy may be violated.

Indeed, even if not all transparency requirements were achieved, we must understand this event as a win for Mexico.

No one doubts that the approved NAS is a much more solid institution to identify, prosecute and sanction corruption acts, than anything the country had before. Even if the NAS was left as approved by congress, Mexico is in a better situation to reduce corruption. Furthermore, 2016 will be remembered as the first time in which Mexicans peacefully forced their Congress to inaugurate a new vision of democracy, one with full citizen participation.

The main objective of the NAS, which was the coordination, collaboration, and systematization of the operations of anti-corruption institutions, was achieved. Mexico has now a system composed of (1) independent and effective authorities coordinated around a common mission to prevent and combat corruption; (2) a new comprehensive and integrated system of administrative responsibilities; (3) a new criminal regime to fight corruption; and (4) a new control and oversight system to coordinate state and local authorities.

The real challenge will not be the battle in Congress but the challenge of meaningful implementation. Mexico needs a NAS that gives results.

References

Aristegui Noticias (2014). La Casa Blanca de Enrique Peña Nieto. Reporte Especial, Aristegui Noticias. November 9th, 2014.

The Economist (2015). The New Movers and Shakers. The Americas, The Economist. May 2nd, 2015.

[1] Such impact had been made possible by Mexico’s free press. The federal government had recently been hit by a series of corruption scandals (Aristegui Noticias, 2014), and was receptive to new ideas that could provide them legitimacy.