Nuevo Leon’s Anticorruption System: a Citizen-Focused Approach in the Fight against Corruption
In March 2017, the Mexican State of Nuevo León approved amendments to the local Constitution to create the State Anticorruption System (“SAS”). Among other reasons discussed below, this development is notable for successfully leveraging the power of organized civil society in tackling a complex problem such as corruption, through active participation in the legislative process and in the subsequent implementation of the measures adopted.
At its most basic, the SAS is intended to implement in Nuevo León the requirements of the National Anticorruption System (“NAS”), a sweeping set of federal laws, rules and institutions enacted in 2015 and 2016. A long-delayed campaign promise of Mexican President Enrique Peña Nieto, the NAS gained urgency after several scandals rocked the federal government and gave rise to a popular outcry for accountability and effective measures to fight corruption.
Although the NAS represents a major advance in many respects, its implementation has been plagued by political infighting and logistical problems, particularly with respect to the appointment of an independent anticorruption prosecutor and other key personnel. It is difficult to single out any one factor, but a lack of citizen participation and processes based on partisan considerations seem to be at the core of these problems.
Against this background, a group of 14 institutions and several private citizens in Nuevo León identified a unique opportunity to go beyond the requirements of the federal mandate, and pursue an ambitious agenda to create a state-of-the-art system that would position Nuevo León as an example in the fight against corruption in Mexico. These institutions and citizens formed an ad hoc organization called the “Anticorruption Coalition”, which counts among its members some of the State’s main universities, professional and business associations, NGOs, and anticorruption researchers, practitioners and activists.
From the beginning, the Anticorruption Coalition identified certain core issues that the SAS should incorporate, and developed a detailed work plan to achieve their adoption. At the heart of the Coalition’s work were three guiding principles:
- The SAS must be built around meaningful citizen participation, particularly in the appointment of key persons, design of mechanisms and institutions, and implementation of proposals;
- Active engagement with all relevant parties, including private citizens, members of Congress, and other government officials, through public discussion forums and other meetings;
- Free and open exchange of ideas, openly questioning positions and assumptions, with decisions based on merit and facts.
After months of intensive work and discussions -which themselves represented a paradigm shift in citizen participation in the legislative process- the participants converged on a State anticorruption system that far exceeds the requirements of federal law, and introduces several important innovations, such as:
- The creation of a Selection Committee, comprised entirely of private citizens, which will have a key role in selecting the anti-corruption prosecutor and other anti-corruption officials.
- Severe sanctions and penalties, such as confiscation of assets of third-parties and companies used to hide the proceeds of corruption; enhanced powers for recovery of unlawfully acquired assets; and extended disbarment from public service or participation in public contracts, among others.
- Joint liability of senior officials with their subordinates, in cases of nepotism or collusion.
- Enhanced participation of private citizens in the Coordinating Committee of the SAS, the body tasked with managing and developing the various components and participants of the system.
- Mandatory disclosure of tax returns, beneficial ownership of assets, and conflicts of interest, by all public officials and candidates for public office, through standardized and pre-approved forms.
- Empowering the Congressional Auditor to directly file criminal suits and prescribe sanctions against all government officials and private persons involved in public corruption.
- Allowing the Coordinating Committee of the SAS to issue binding resolutions.
- Linking the severity of sanctions for companies and businesses involved in public corruption to the amount or impact of the corrupt activities.
- Greater incentives for individuals to file complaints and enhanced protection of whistleblowers.
The constitutional amendments that gave birth to the SAS set a solid foundation for fighting corruption in Nuevo León, but they are only the beginning. The system must be implemented through new laws and provisions, and more importantly though the continued participation of civil society in the design, installation and implementation of its institutions and procedures. The Anticorruption Coalition has expressed its intention to continue working to ensure the SAS becomes a model for citizen participation and an effective tool in the fight against impunity and corruption in Mexico.