Last week, as the number of COVID-19 cases in El Salvador climbed to at least 32, Salvadoran Congress approved a two-billion dollar loan for emergency government funding to combat the pandemic. Because Congress approved the funds during a state of emergency, the executive branch has more discretion in how the money is spent than it would under normal conditions. At the same time, government restrictions on freedom of the press have been ramped up, making it more difficult for journalists to obtain and share information. Salvadoran civil society is already monitoring these actions for potential corruption; however, the increased powers afforded to the executive branch – and increased restrictions on civil society – in the current crisis mean that now, more than ever, El Salvador must have effective anti-corruption mechanisms in place. The International Commission Against Impunity in El Salvador (CICIES), established last year, should be playing a visible and vigilant role right now; in this article, DPLF outlines some of the major concerns about CICIES, its formation, and its current status, all of which may impede its ability to play such a role.

TIMELINE

June 1, 2019​ – Nayib Bukele takes office as President of El Salvador

September 6, 2019 – President Bukele’s government signs a Letter of Intent with the Organization of American States (OAS) to form a technical group in charge of establishing a CICIES[1] and establish CICIES’ mandate within three months

September 20, 2019 – The government of El Salvador, represented by Minister of Foreign Affairs Alexandra Hill Tinoco, and the OAS, represented by General Secretary Luis Almagro, sign an Agreement of Cooperation[2] to carry out jointly advance work for the installation of CICIES

September 24, 2019 – The OAS names Ronalth Ochaeta as CICIES’ acting spokesperson, whose role is to establish relationships with both the judiciary and the Attorney General’s office

November 4, 2019 – The ​United Nations (UN) sends President Bukele a proposal of guidelines for the creation of a CICIES

The creation of an international anti-corruption commission for El Salvador was the highly publicized focal point at the center of Nayib Bukele’s presidential campaign. Capitalizing on the context of extreme inequality, insecurity, and impunity that have long plagued El Salvador, Bukele’s campaign underscored the idea that an internationally supported commission to combat corruption and impunity was necessary to disrupt the status quo and bring about a new era for the country.

Corruption is deeply entrenched throughout El Salvador’s government, including the highest levels of public office. In 2018, former President Antonio Saca (2004 – 2009) was sentenced to ten years in prison for embezzlement and money laundering,[4] and in recent years two other former Presidents, Francisco Flores (1999 -2004), now deceased, and Mauricio Funes (2009 -2014), faced corruption charges involving the misappropriation and/or embezzlement of millions of dollars during their presidencies.[5] Currently leaders of both ARENA and FMLN, El Salvador’s most prominent political parties, face accusations of electoral fraud for paying money to El Salvador’s two most notorious gangs (MS-13 and the 18) to secure votes.[6] These cases are just a few of the more recent high profile examples of the pervasive corruption within Salvadoran government and among political elites; however, extensive structures of criminality and corruption go back further in El Salvador’s history, with many of them tracing roots back to the country’s civil war, which lasted from 1980 to 1992.

In light of this context, the need to address corruption in El Salvador is irrefutable. Nonetheless, specific actions taken by the Bukele administration in establishing the International Commission Against Impunity in El Salvador (Comisión Internacional contra la Impunidad en El Salvador, or CICIES), as well as the commission’s mandate and current functions, have raised more questions than they have answered, and generated serious concerns.

The establishment of CICIES and its mandate

Last September, just months after assuming the presidency, Nayib Bukele and the Organization of American States (OAS) announced that they would establish the CICIES. The agreement between the OAS and El Salvador states that the role of CICIES would be “supporting, strengthening and actively collaborating with institutions…responsible for preventing, investigating and sanctioning acts of corruption.”[7] While the creation of CICIES was initially embraced by many both within El Salvador and at the regional level, there was – and still is – little clarity about precisely what the commission’s role would be and how it would go about dismantling systemic corruption and impunity.

Certain elements of CICIES’ creation process draw into question the commission’s ability to function as an independent, objective, and effective mechanism for combating impunity. In theory, both the United Nations (UN) and the Organization of American States (OAS) would be closely involved in the creation of an international anti-corruption agency for El Salvador. However, during its planning phase, Bukele largely ignored the UN’s suggested guidelines for the commission, favoring the much less rigid plan proposed to him by the OAS. The proposal put forth by the UN outlined a commission similar to CICIG (Comisión Internacional en Contra de Impunidad en Guatemala) – the UN-backed anti-corruption commission[8] credited with major achievements in investigating and sanctioning large-scale corruption schemes in Guatemala – but adapted to the specific context of El Salvador. The UN proposal involved significant international oversight and monitoring – crucial for strengthening local investigative capacities – as well as clearly stating that autonomy and independence would be “essential elements” for an international anti-corruption agency in El Salvador to be successful.[9] Less than two weeks after receiving the UN’s proposal, Bukele signed an agreement with the OAS accepting their proposal, without ever responding to the UN. This suggests that Bukele never intended to sincerely consider the UN proposal, and in fact opted specifically and decisively to avoid the oversight and accountability that the UN would have required.

Another troubling aspect of CICIES’ creation is the extreme celerity with which it was established by the Bukele government – opening an office and a Twitter account before they had even hired personnel to staff the commission – without the participation of other essential actors in its planning. President Bukele launched the CICIES within months of taking office, with little (if any) consultation with citizen groups or other institutions that should have played a key role in determining its framework and functions. Other recent international anti-corruption commissions in the region, CICIG in Guatemala and MACCIH in Honduras, were established following years of advocacy by civil society and extensive dialogue between the countries’ respective governments and the UN and OAS. In contrast, CICIES was created – and continues to exist – as an extension of the executive branch, without citizen input or participation in its design. It is no wonder, then, that much of Salvadoran civil society remains skeptical about the commission’s ability to address deeply entrenched corruption. The Bukele administration’s actions thus far demonstrate an interest in maintaining the appearance of working to fight corruption, but with few steps to indicate a sincere interest in actually changing the dynamics of corruption and impunity that have long been the status quo in El Salvador.

Concerns and challenges: Can CICIES be effective?

There are significant obstacles, both structural and political, that may impede CICIES’ ability to be effective in combating impunity in El Salvador. For one, restrictions in El Salvador’s constitution limit CICIES’ ability to conduct investigations: the Constitution establishes that the Attorney General’s office is the only institution with the ability to direct criminal investigations and bring criminal charges in El Salvador,[10] making them the only authority with exclusive access to the high-level tools that large-scale corruption investigations require. This constitutional limitation is not, however, an insurmountable challenge: rather than meaning that CICIES will be incapable of addressing impunity in El Salvador, it means that in order for them to do so, there must be clearly articulated provisions for CICIES to work in cooperation with the Attorney General’s office.[11] One major factor in CICIG’s success in addressing corruption cases in Guatemala was the alliance formed between the international commission and the then-Attorney General’s office, and their joint efforts to investigate and bring corrupt actors to account. Without that kind of cooperation – which requires sincere political will and a transparent, dedicated effort to establish the necessary systems of collaboration – CICIES is unlikely to make much headway in combating impunity in El Salvador.

Another significant potential challenge to CICIES’ effectiveness is its aforementioned connection with the executive branch. The fact that CICIES functions largely under the control of the executive power, without sufficient transparency or citizen and international oversight, raises doubts about its ability to carry out its mandate independently. Without adequate safeguards and monitoring in place, CICIES runs the risk of becoming beholden to a singular political agenda and used as a tool to exact revenge on political enemies without ever addressing true systemic corruption.

Key elements for an effective CICIES

If it is to be an effective mechanism for combating impunity in El Salvador, there are several key considerations that CICIES must take into account going forward.

As of yet it is unclear if CICIES, in its development or current activities, has addressed El Salvador’s history of impunity and, in particular, the impact of the internal conflict and the criminal structures that emerged within its context. It will be difficult to adequately address current structures of corruption and organized crime within El Salvador without examining the historical context from which many of them emerged. Numerous criminal networks, often involving public officials, arose during El Salvador’s civil war, and it behooves CICIES to investigate what has become of them and what role they may have played in the development of present day corruption.

It is also significant that CICIES is an international mechanism with a finite mandate in El Salvador. The role of international corruption commissions is not only to investigate and bring to light discrete cases of corruption, but rather to strengthen the investigative capacities of national government institutions, chief among them the Attorney General’s office, so that anti-corruption work can continue – and corruption can be reduced– once their mandate is over. Establishing a clear relationship with the Attorney General’s office, and confronting its weaknesses and challenges in conducting corruption investigations, will be crucial for effecting lasting systemic change within El Salvador.

Lastly, the importance of citizen involvement and international oversight in an anti-impunity mechanism cannot be overstated. A broad coalition of local and regional civil society organizations have been independently monitoring CICIES’ development since it was announced, providing analysis, technical proposals and recommendations to the government, [12] which, thus far, have largely fallen on deaf ears.

 In addition to advocating for greater dialogue between CICIES and Salvadoran civil society, these groups have emphasized the necessity of international support, in particular through collaboration with the UN and the OAS, to strengthen CICIES’ capacities and ensure its independence.[13] As long as CICIES remains accountable solely to the office of the President, without any means for critical observation by civil society, other government institutions, and the international community, its ability to attain accountability will be inherently limited.

The status of CICIES today

By all accounts from civil society within El Salvador, CICIES currently exists in little more than name. Six months after its inception, few steps have been taken to establish the commission as a functional apparatus: few resources have been invested in creating a formalized office or recruiting and training personnel, and the precise activities of CICIES remain, for the most part, unclear. While CICIES exists on paper and on social media, it is far from being a working agency, much less carrying out its mandate of tackling impunity through serious investigations and accountability processes. Whether this inertia is due to insufficient capacities, lack of political will or interest on the part of Bukele’s administration, or something more sinister, the lack of transparency regarding CICIES’ activities and progress are disconcerting, and warrant significant further examination and explanation.

It is uncertain whether, how, and to what extent CICIES will impact the landscape of corruption and impunity in El Salvador. It is clear, though, that as long as so many significant concerns surrounding the commission remain unaddressed, CICIES will be, at best, an empty political gesture, and at worst, simply the latest means for maintaining the status quo, continuing cycles of impunity, and hindering the possibility of achieving real accountability in El Salvador.

[1] Ricardo Avelar, “OEA y Gobierno acordaron definir el mandato de CICIES dentro de tres meses,” ElSalvador.com, September 10, 2019, available at:  https://www.elsalvador.com/eldiariodehoy/oea-y-gobierno-acordaron-un-plazo-de-tres-meses-para-definir-el-mandato-de-la-cicies/638642/2019/

[2] “Acuerdo de Cooperación entre la Secretaría General de la Organización de los Estados Americanos y el gobierno de la República de El Salvador para la realización de una misión de avanzada para la instalación de la CICIES,” September 20, 2019, available at: http://www.oas.org/documents/spa/press/acuerdo-oea-el-salvador-mision-instalacion-cicies.pdf

[3] “Acuerdo Marco entre el gobierno de la República de El Salvador y la Secretaría General de la Organización de los Estados Americanos para el Establecimiento de la Comisión Internacional Contra la Impunidad en el Salvador,” November 26, 2019, available at: http://www.oas.org/fpdb/press/Acuerdo-CICIES-11.26.19.pdf

[4] “El Salvador’s ex-leader Antonio Saca gets 10 years in jail BBC News, September 13, 2018, available at:  https://www.bbc.com/news/world-latin-america-45507582

[5] See Nelson Renteria, “El Salvador’s top court approves extradition request for ex-President Funes, Reuters, March 21, 2019, available at: https://www.reuters.com/article/us-el-salvador-corruption/el-salvadors-top-court-approves-extradition-request-for-ex-president-funes-idUSKCN1R303P; “Salvadorean ex-leader Flores in Taiwan payment inquiry,” BBC News, January 8, 2014, available at: https://www.bbc.com/news/world-latin-america-25649988

[6] El Faro English, “The Struggle Behind the Creation of an Anti-Corruption Agency,” February 7, 2019

[7] OEA, “Gobierno de El Salvador y la Organización de los Estados Americanos (OEA) instalan la CICIES,” September 6, 2019, available at: https://www.oas.org/es/centro_noticias/comunicado_prensa.asp?sCodigo=C-063/19

[8] El Faro English, “The Struggle Behind the Creation of an Anti-Corruption Agency,” February 7, 2019

[9] Jimmy Alvarado, “The UN drew up plans for a CICIES similar to Guatemala’s, but Bukele opted for the OAS’s proposal instead,” El Faro, February 8, 2020, available at: https://elfaro.net/en/202002/el_salvador/23989/The-UN-drew-up-plans-for-a-CICIES-similar-to-Guatemala%E2%80%99s-but-Bukele-opted-for-the-OAS%E2%80%99s-proposal-instead.htm

[10] Constitution of the Republic of El Salvador (1983) Art. 193

[12] See  “Comunicado de Prensa sobre la CICIES,” available at: http://www.dplf.org/sites/default/files/comunicado_de_prensa_sobre_la_cicies_3_final.pdf

[13] See “Comunicado de Sociedad Civil Sobre CICIES apoyada por ONY y OEA,” available at:
http://www.dplf.org/sites/default/files/comunicado_de_prensa_sobre_la_cicies_21.11.2019.pdf