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2007 Assessment

Colombia: Integrity Indicators Scorecard

Colombia: Integrity Scorecard Report > Sub-Category: Executive Accountability
Indicators		Score
23	In law, can citizens sue the government for infringement of their civil rights?	100
24	Can the chief executive be held accountable for his/her actions?	81
25	Is the executive leadership subject to criminal proceedings?	100
26	Are there regulations governing conflicts of interest by the executive branch?	72
27	Can citizens access the asset disclosure records of the heads of state and government?	0
28	In practice, official government functions are kept separate and distinct from the functions of the ruling political party.	100

Indicator and sub-Indicator Details

In law, can citizens sue the government for infringement of their civil rights?

23: In law, can citizens sue the government for infringement of their civil rights?

Score:

YES

Comments: There are different constitutional mechanisms to protect citizens from violations of civil rights. The "accion de tutela" (tutelage action or resource to defend basic rights art. 86), the "accion de cumplimiento" (observance action, art. 87, to make effective a law or administrative act), "derecho de petición" (right of petition to request information art. 23), and the "popular action" to protect collective rights (art. 88). The art. 89 of the Constitution also expresses that the law should create other resources to protect individual and collective rights against the action or omission of the state. Those legal resources are: recall mechanism for elected authorities, nullity action, nullity action and reposition of the right, action of reparation, electoral action of nullity. Some of those mechanisms, such as the tutela are better known by citizens. In consequence, tutelas and rights of petition are more widely used by citizens to protect their rights before actions of the government.

References: Corporación Transparencia por Colombia. 2002. El sistema nacional de integridad en Colombia. Análisis y resultados del estudio de caso. Bogotá.

Constitución Política de Colombia 1991. art. 23, 86, 87, 88, 89

Can the chief executive be held accountable for his/her actions?

24a: In practice, the chief executive gives reasons for his/her policy decisions.

Score:

100

Comments: According to the law, every decision of the executive has to be motivated and has to abide by the law. With some exceptions, the chief executive gives explanations for his policy decisions, and citizens are aware of the arguments the executive has for making decisions.

Since the beginning of his first mandate, President Alvaro Uribe created the Consejos Comunitarios de Gobierno (Communitarian Councils of Government). The Councils are weekly regional meetings moderated by Uribe himself to solve peoples' problems and have become a space for the president to explain his decisions. The Councils have created a sense of efficiency highly valued by citizens that reinforce Uribe's unmediated approach to citizens.

The downside of the openness of the government and cabinet members to explain decisions is the fact that the president is not very keen on accepting questions from journalists or opposition in a regular manner. Although there is no official censorship, the government has accused journalists who report on corruption, violence and human rights of lack of patriotism. For example, after the national magazine, Semana, published a report linking the head of the Intelligence Agency (DAS) with paramilitary groups, Uribe "dismissed Semana as "frivolous" and portrayed its editor as a high society fop.

References: Corporación Transparencia por Colombia. 2002. El sistema nacional de integridad en Colombia. Análisis y resultados del estudio de caso. Bogotá.

INFORME SOBRE LA LIBERTAD DE PRENSA EN COLOMBIA. Sociedad Interamericana de Prensa. 2007. [ LINK ]

24b: In law, the judiciary can review the actions of the executive.

Score:

YES

Comments: The Constitutional Court reviews the constitutionality ex officio and ex ante of the most important statutes, treaties and bills issued by congress and proposed by the government. It can also review ex ante the declaration of any state of emergency (a legal period conferred by the congress to the president within which he can issue decrees during periods of external war, economic crisis, or difficult public order situations). The Constitutional Court can also revoke decrees passed by the executive during periods of emergency if they are considered unconstitutional and any legislative decree issued by the government.

The Council of the State reviews the administrative actions of the government.

References: Corporación Transparencia por Colombia. 2002. El sistema nacional de integridad en Colombia. Análisis y resultados del estudio de caso. Bogotá.

Constitución Política de Colombia 1991 art. 237 and 241.

24c: In practice, when necessary, the judiciary reviews the actions of the executive.

Score:

100

Comments: The Constitutional Court has been very active in reviewing actions of the government and in voiding unconstitutional aspects of laws. The Constitutional Court has been characterized as being highly liberal and progressive and even criticized as being fairly independent from the government. Among the most representative decisions of the Court are the constitutional review on the 2003 government referendum proposal or the adjustments included in the "Peace and Justice Law," a law issued to facilitate the peace process with paramilitary groups that has been criticized by some sectors as a blank check for impunity.

In 2003, the court reviewed Uribe's referendum proposal and reduced the questionnaire to 15 points eliminating a question to ban drug consumption; the possibility to extend the period of mayors and governors; and most important, the possibility to vote the text of the law as a whole, which would have facilitated the success of the government's proposal.

Since July 2007, there has been a controversy on the election of a new member of the Court, for which the government initially sent a list of three conservative women. The move was criticized as a way to reduce the progressive spirit of the Court, but especially because the elaboration of the lists seemed to answer to the demands made by the conservative party to the president. In the end, two of the initial candidates quit the list, and the government elaborated a new one, including the current Judicial Secretary of the Presidency in a very politicized and criticized decision. Thus, critics argue, the independence of the Court can be weakened. The risks derived from this decision may lower the score of the indicator in the future.

References: Corporación Transparencia por Colombia. 2002. El sistema nacional de integridad en Colombia. Análisis y resultados del estudio de caso. Bogotá.

Revista Semana. 2007. La Corte de Uribe El Presidente ya no quiere quitarle poder a la Corte Constitucional, sino darle un rumbo más conservador. July 28, 2007 # 1317.

Revista Semana. 2007. La categórica renuncia de las aspirantes a Magistrado de la Corte Constitucional desnuda una elección anunciada. Aug. 14, 2007

24d: In practice, the chief executive limits the use of executive orders for establishing new regulations, policies, or government practices.

Score:

100

Comments: Executive orders are the norm in Colombia's presidential system, but it is not a contravention to legal requirements. Even by Latin American standards, the Colombian president is very powerful.

The president has veto power on legislative decisions (art. 165, 166 and 167 of the Constitution), decree power (art. 150 Constitution) and gatekeeping powers on the elaboration of budgets. He can also use an "urgency petition" to prioritize bills in the legislative agenda. The 1991 Constitution created some checks on presidential actions, and as a consequence, the president today has lost power on agenda setting and is more accountable for his actions than before 1991. According to Cardenas et al, after 1991, the president has more difficulties passing laws. However, the president is still the main agenda setter in most policy areas.

References: Cárdenas, Mauricio, Junguito, Roberto, Pachón, Mónica. 2006. Political Institutions, and Policy Outcomes in Colombia: The Effects of the 1991 Constitution Research Network Working Paper #R-508. Inter-American Development Bank.

Shugart, Mattew Soberg. 1999. Presidentialism, Parliamentarism, and the Provision of Collective Goods in Less-Developed Countries. In: Constitutional Political Economy, 10:1, March, 1999.

Is the executive leadership subject to criminal proceedings?

25a: In law, the heads of state and government can be prosecuted for crimes they commit.

Score:

YES

Comments: The president can be investigated and accused by the head of the Procuraduria or Public Ministry (general attorney) or by the Accusations Commission of the Lower Chamber, and the sanction power is in the hands of the Senate. In case of penal charges, the president can be investigated by the Supreme Court of Justice. Despite the existence of these mechanisms, in practice, accusations on the president are highly political.

References: Corporación Transparencia por Colombia. 2002. El sistema nacional de integridad en Colombia. Análisis y resultados del estudio de caso. Bogotá.

Constitución Política de Colombia 1991. art. 178, 235.

25b: In law, ministerial-level officials can be prosecuted for crimes they commit.

Score:

YES

Comments: All ministerial-level officials can be investigated, prosecuted and charged for criminal allegations by the Procuraduria (general attorney's office) for offenses related to the responsibilities of their position. The Supreme Court of Justice investigates ministerial-level officials in cases of criminal and penal allegations after accusation of the General Prosecutor (Fiscal General de la Nación).

References: Corporación Transparencia por Colombia. 2002. El sistema nacional de integridad en Colombia. Análisis y resultados del estudio de caso. Bogotá.

Constitución Política de Colombia 1991 art. 234, 277, 251.

Are there regulations governing conflicts of interest by the executive branch?

26a: In law, the heads of state and government are required to file a regular asset disclosure form.

Score:

YES

Comments: According to the Law 190 of 1995 (art. 13,14), all public servants have to declare the amount of their income and rents before taking office, when leaving, and when requested by relevant authorities.

References: Corporación Transparencia por Colombia. 2002. El sistema nacional de integridad en Colombia. Análisis y resultados del estudio de caso. Bogotá.

Ley 190 de 1995 (junio 6) Diario Oficial No. 41.878, de 6 de junio de 1995 "Por la cual se dictan normas tendientes a preservar la moralidad en la administración pública y se fijan disposiciones con el fin de erradicar la corrupción administrativa." art. 13,14.

26b: In law, ministerial-level officials are required to file a regular asset disclosure form.

Score:

YES

References: Corporación Transparencia por Colombia. 2002. El sistema nacional de integridad en Colombia. Análisis y resultados del estudio de caso. Bogotá.

26c: In law, there are regulations governing gifts and hospitality offered to members of the executive branch.

Score:

YES

Comments: The Constitution states that public servants cannot accept gifts, hospitality and honors from foreign governments or international institutions without previous authorization from the government. The Law 734 of 2002, which refers to the disciplinary code for public servants, forbids them to receive or ask for gifts from users or employees who may have an interest in their performance. The Law 190 of 1995 introduces influence peddling as a criminal offence.

References: Corporación Transparencia por Colombia. 2002. El sistema nacional de integridad en Colombia. Análisis y resultados del estudio de caso. Bogotá.

Ley 734 de 2002. (febrero 5) Diario Oficial No. 44.708 de 13 de febrero de 2002 "Por la cual se expide el Código Disciplinario Unico" art. 35.

Constitución Política de Colombia 1991 art. 129.

26d: In law, there are requirements for the independent auditing of the executive branch asset disclosure forms (defined here as ministers and heads of state and government).

Score:

YES

Comments: There is no formal requirement for the independent audit of asset disclosure forms. The Law 190 of 1995 only states that this information has to be in the personnel offices of each entity and it is a requirement for public servants to fill this form out in order to take office. The Decree 2232 of 1995 establishes that the responsibility to review asset disclosure forms is in the hands of the chief of personnel in each government entity, but there is no specific regulation for high-ranking executive officials. The chief of personnel has to review every six months the veracity of declarations using a random selection method. The Administrative Department for Civil Service has created software called SIDEC to file and monitor asset disclosure forms, but there are no statistics on the follow-up to these forms.

References: Organización de Estados Americanos. 2004. Informe del Comité de Expertos a la Organización de Estados Americanos. Implementación en Colombia de las disposiciones de la Convención Interamericana contra la corrupción. . DECRETO NUMERO 2232 DE 1995. DIARIO OFICIAL. AÑO CXXXI. N. 42152. 18, DICIEMBRE, 1995 "por medio del cual se reglamenta la Ley 190 de 1995 en materia de declaración de bienes y rentas e informe de actividad económica y así como el sistema de quejas y reclamos."

26e: In law, there are restrictions on heads of state and government and ministers entering the private sector after leaving the government.

Score:

YES

Comments: The regime of inabilities and incompatibilities for public servants, which covers the president and ministers, does not mention any restriction on private-sector employees after leaving the government. The article 207 of the Constitution states that in order to be a minister, it is necessary to have the same qualifications as being a legislator, and it includes the inability to have private posts while being in office, but does not refer to any restriction after leaving office.

However, the Law 734 of 2002 prohibits former public servants to give advice or representation on matters related to their previous responsibility within one year after leaving office, and also prohibits to influence or participation directly or indirectly on matters that used to be under their responsibility.

References: Constitución Política de Colombia 1991 art. 207.

LEY 734 DE 2002 (febrero 5) Diario Oficial No. 44.708 de 13 de febrero de 2002 "Por la cual se expide el Código Disciplinario Unico."

Peer Review Comments: Such restrictions do not exist. Although a broad array of inabilities and incompatibilities exists for public servants, no specific regulations restrict the ability of heads of state or government ministers to prevent them from taking positions in the private sector after leaving their government jobs.

26f: In practice, the regulations restricting post-government private sector employment for heads of state and government and ministers are effective.

Score:

100

Comments: There is no system to monitor the activities of public servants after leaving office. In fact, there is a widespread perception that there is a "revolving door" between the public and private sector. Informally there may be a cooliing off period given the public character of heads of state and ministers, who usually take jobs in academia or international organizations after leaving office. However, the accountability derived from this kind control is limited given its informality and sometimes even though former Ministers do not take positions in private enterprises they act as advisors of them. For example, the former Minister of Finance, who held office until March 2007, then took a position as advisor of the Financial Group AVAL in September 2007. The former Minister of Foreign Relations who held office until February 2007 and then took a position in the Graduate School of the University Externado de Colombia was recently elected as a substitute Board Member of the recently privatized energy enterprise ISAGEN.

References: Constitución Política de Colombia 1991.

Misas Arango, Gabriel. 2005. La Lucha Anticorrupción en Colombia, teorías, prácticas y estrategias Contraloría General de la República, Bogotá.

Revista Portafolio Económico. 16 de Mayo de 2007. Cambio en cúpulas por la llegada de nuevos dueños

Periódico El Tiempo. Noviembre 26 de 2007. Elección de María Consuelo Araújo como integrante de Junta de Isagén provocó protestas en asamblea

Peer Review Comments: According to conversations held with various lawyers who have worked with the government, there is a cooling off period, and most public servants take jobs in academia or international organizations to avoid such conflicts. Although no official system exists to monitor the activities of public servants after leaving office, their situation as public figures makes it very difficult for them to accept private jobs without being noticed and controlled.

26g: In practice, the regulations governing gifts and hospitality offered to members of the executive branch are effective.

Score:

100

Comments: Regulations are enforced, and when scandals arise they are prosecuted. Over the last year, there have been no serious accusations on ministers receiving gifts and hospitality. However, the perception is that it is still frequent for members of the executive branch to receive gifts and hospitality in order to disclose important information or to facilitate administrative or political procedures.

In general, although there are legal frameworks to prevent conflicts of interests, there are still weaknesses in the detection of those conflicts and in the coordination of the institutions that have a responsibility to control and prevent conflicts of interest.

It is important to note that there is a perception that in recent years the extent of petty corruption has decreased in Colombia.

References: Revista Portafolio. Escándalos de Marca Mayor. Bogotá, Miércoles 11 de abril de 2007.

Corporación Transparencia por Colombia. 2002. El sistema nacional de integridad en Colombia. Análisis y resultados del estudio de caso. Cuadernos de Transparencia # 4. Bogotá.

Transparency International. Integridad Pública en América Latina: ¿Contribuye el marco legal latinoamericano a que los funcionarios sean íntegros? ¿Coincide la práctica con la ley?. www.transparency.org/content/download/17926/242560

26h: In practice, executive branch asset disclosures (defined here as ministers and above) are audited.

Score:

100

Comments: Asset disclosure forms of the executive are audited, but there is no mechanism or procedure to ensure regular auditing. As analyzed by the Corporation Transparency for Colombia, there are different limitations in effectively auditing asset disclosure forms. First, habeas data regulations and the public order situation by which citizens can be victim of kidnapping by ransom makes difficult a real disclosure. Second, it is difficult to monitor increases in assets, because they are hidden behind practices such as money laundering, foreign accounts, and the use of legal entities to hide real assets. And third, even when available, information might be unreliable.

According to the most recent index of transparency in public institutions done by the Corporation Transparency for Colombia, some ministries have better information and are more visible than others. These factors still exist even though the Law 190 of 1995 requires all public servants to declare their participation in private affairs, as well as their foreign accounts, loans and credits, etc.

Another problem is that there is no formal requirement for the independent audit of asset disclosure forms. The Law 190 of 1995 only states that this information has to be always on the personnel offices of each entity and is a requirement for taking office.

The Decree 2232 of 1995 establishes that the responsibility to review asset disclosure forms is in the hands of the chief of personnel in each government entity, but there is no specific regulation for high-ranking executive officials. The chief of personnel has to review every six months the veracity of declarations using a random selection method, but the process is not regular.

The Administrative Department for Civil Service has created software called SIDEC to file and monitor asset disclosure forms and it constitutes an advance in the quality of auditing. However, there are no statistics on the follow-up to asset disclosure forms through this system, although it represents a significant advance.

References: Corporación Transparencia por Colombia. 2002. El sistema nacional de integridad en Colombia. Análisis y resultados del estudio de caso. Cuadernos de Transparencia # 4. Bogotá.

Organización de Estados Americanos. 2004. Informe del Comité de Expertos a la Organización de Estados Americanos. Implementación en Colombia de las disposiciones de la Convención Interamerican contra la corrupción.

DECRETO NUMERO 2232 DE 1995. por medio del cual se reglamenta la Ley 190 de 1995 en materia de declaración de bienes y rentas e informe de actividad económica y así como el sistema de quejas y reclamos. Corporación Transparencia por Colombia. 2006. Indice de Transparencia Nacional, Entidades públicas nacionales. Bogotá.

Peer Review Comments: Even though no formal or consistent auditing is conducted when complaints are made or suspicions arise about illicit money, a proper investigation is done.

Peer Review Comments: Asset disclosures by the executive branch, technically speaking, are not audited.

Can citizens access the asset disclosure records of the heads of state and government?

27a: In law, citizens can access the asset disclosure records of the heads of state and government.

Score:

YES

Comments: The asset disclosure forms are only available for the general attorney's office, the heads of personnel offices in each entity, and the National Registry's office. Asset disclosure records are not easily available for citizens, and there is no specific provision to make asset disclosure forms available for the public. Although any citizen can request information through rights of petition, the nature of asset disclosure forms might be reserved as it refers to personal information. Although there is no habeas data law, according to the Constitution and the rulings of the Constitutional Court, citizens can authorize the use of information about them registered in databases of public institutions. In sum, common citizens might not be able to access asset disclosure forms of heads of government and ministerial-level officials.

References: Ley 190 de 1995 (junio 6) Diario Oficial No. 41.878, de 6 de junio de 1995 "Por la cual se dictan normas tendientes a preservar la moralidad en la administración pública y se fijan disposiciones con el fin de erradicar la corrupción administrativa."

Constitución Política de Colombia 1991. art. 1.

Sentencia de Unificación de Jurisprudencia de la Corte Constitucional de Colombia SU-082/95, del 1 de marzo de 1995.

27b: In practice, citizens can access the asset disclosure records of the heads of state and government within a reasonable time period.

Score:

100

Comments: The asset disclosure forms are only available for the general attorney's office, the heads of personnel offices in each entity, and the National Registry's office. Asset disclosure records are not easily available for citizens and there is no specific provision to make asset disclosure forms available for the public. Although any citizen can request information through rights of petition, the nature of asset disclosure forms might be reserved as it refers to personal information. Although there is no habeas data law, according to the Constitution and the rulings of the Constitutional Court, citizens can authorize the use of information about them registered in databases of public institutions. In sum, common citizens might not be able to access asset disclosure forms of heads of government and ministerial-level officials.

Constitución Política de Colombia 1991. art. 15.

Sentencia de Unificación de Jurisprudencia de la Corte Constitucional de Colombia SU-082/95, del 1 de marzo de 1995.

Interview with Rodrigo Lara Restrepo, Director of the Presidential Anticorruption Program. July 19, 2007. Bogotá.

27c: In practice, citizens can access the asset disclosure records of the heads of state and government at a reasonable cost.

Score:

100

Constitución Política de Colombia 1991. art. 15.

Sentencia de Unificación de Jurisprudencia de la Corte Constitucional de Colombia SU-082/95, del 1 de marzo de 1995.

Interview with Rodrigo Lara Restrepo, Director of the Presidential Anticorruption Program. July 19, 2007. Bogotá.

In practice, official government functions are kept separate and distinct from the functions of the ruling political party.

28: In practice, official government functions are kept separate and distinct from the functions of the ruling political party.

Score:

100

Comments: There are distinctions between state functions and party activities. According to the Law 734 of 2002, public servants with civil and political authority and those in managerial posts are forbidden to participate in the activities of political parties and in political controversies, being this causal for a disciplinary sanction. Although there can be clear political party influences in civil service or in independent government institutions, resources and personnel are clearly separated.

References: Ley 734 de 2002, publicada en el Diario Oficial No 44.708, de 13 de febrero de 2002, por la cual se reforma el Código Disciplinario Único.