This chapter examines the coherence and resilience of Mexico City’s public integrity system. At present, it is undergoing substantive reforms that will establish the Local Anti-corruption System of Mexico City. In line with the principles of the OECD 2017 Recommendation of the Council on Public Integrity, it examines the institutional arrangements of the Local Anti-corruption System, with a view to strengthening vertical and horizontal co-ordination. It also suggests adopting a whole-of-society approach towards integrity by actively involving civil society. This chapter reviews how a strategic approach to public integrity can be mainstreamed throughout public institutions.
OECD Integrity Review of Mexico City
Upgrading the Local Anti-corruption System
OECD Public Governance Reviews
Chapter 1. Laying the groundwork for a coherent integrity system in Mexico City
Abstract
1.1. Introduction
A key issue in any public integrity system concerns the institutional set-up for ensuring public sector integrity and fighting corruption. Designing a comprehensive and coherent public integrity system with clear institutional arrangements is a crucial element in delivering successful integrity policies throughout society. Integrity policies and functions are increasingly shared between actors and institutions in different sectors and levels of government. In the context of ensuring the effectiveness of integrity policies, and maximising institutions’ scope and capacity to fulfil their mandates, it is increasingly important to address structural or operational deficiencies that hold back measures to prevent and stamp out corruption.
Mexico City is undergoing a wide anti-corruption reform that will establish the Local Anti-corruption System of Mexico City (Sistema Local Anticorrupción de la Ciudad de México, or SLAC-CDMX). Its goal is to prevent and detect corruption, sanction breaches of administrative responsibilities and corrupt misconduct. It is also intended to harmonise the legal framework with the constitutional reform at the national level that created the National Anti-corruption System (Sistema Nacional Anticorrupción, SNAC). The SNAC is an attempt to improve on the previous integrity system by:
addressing fragmentation in policies and developing a more comprehensive and coherent approach to integrity;
overcoming notorious “implementation gaps” by improving co-ordination both vertically (across federal government) and horizontally (between levels of government), and particularly by bringing states into the remit of the system;
strengthening enforcement mechanisms for integrity breaches under both administrative and criminal jurisdictions, including for private sector actors;
reinforcing oversight by requiring greater transparency, expanded auditing powers and greater involvement of civil society (OECD, 2017[1]).
The implementation of Mexico’s National Anti-corruption Reform in Mexico City is an obligation enshrined in the Mexican Constitution (Article 113) and makes it necessary to adopt and reform legal instruments in Mexico City according to the national model (Box 1.1). It represents an opportunity to strengthen institutional arrangements for a coherent and comprehensive integrity system.
Box 1.1. Mexico’s national anti-corruption reform
On 27 May 2015, Mexico’s Federal Official Gazette published a decree that amended, added or repealed several provisions of the Constitution (specifically, Articles 22, 28, 41, 73, 74, 76, 79, 104, 108, 109, 113, 114, 116 and 122). This reform introduced the National Anti-corruption System (Sistema Nacional Anticorrupción, or SNAC) into law and set in motion the debates around and passage of the secondary legislation necessary to put the SNAC into effect. A year later, on 18 July 2016, these secondary laws were promulgated by Decree (Decreto por el que se expide la Ley General del Sistema Nacional Anticorrupción; la Ley General de Responsabilidades Administrativas, y la Ley Orgánica del Tribunal Federal de Justicia Administrativa) and included the following:
General Law of the National Anti-corruption System (Ley General del Sistema Nacional Anticorrupción): the cornerstone legislation establishing institutional and governance arrangements for the System and outlining its objectives and the required activities. It has the status of a General Law and requires federal states to set up their own systems along similar lines. The law also requires specific information to be published and made publicly available on the newly created Digital Platform (Plataforma Digital Nacional del Sistema Nacional).
Organic Law of the Federal Tribunal of Administrative Justice (Ley Orgánica del Tribunal Federal de Justicia Administrativa): the tribunal was made autonomous under the Constitutional reform of 2015, and this new law established the organisation of the Tribunal and its courts, including regional courts. The Law also sets out rules for the selection and removal of magistrates.
The Organic Law of the Attorney General’s Office (Ley Orgánica de la Procuraduría General de la República): this creates the position of Specialised Anti-corruption Prosecutor (Fiscal Especializado en material de delitos relacionados con la corrupción), outlining the responsibilities of this office and consolidating its role in the national anti-corruption system. The Criminal Code was amended accordingly, to further clarify procedures for prosecuting corruption-related crimes under Chapter 10.
General Law of Administrative Responsibilities (Ley General de Responsabilidades Administrativas): this new law replaced the federal Law of Administrative Responsibilities when it expired in July 2017. It lays out the responsibilities of public officials (including the disclosure of their private assets and interests) and sets out administrative disciplinary procedures for misconduct, differentiating between less serious and serious offences. Serious offences may now fall under the jurisdiction of the federal Tribunal of Administrative Justice. Notably, it also expands liability for alleged breaches of integrity to natural and legal persons.
The Law of Auditing and Accountability (Ley de Fiscalización y Rendición de Cuentas de la Federación): this new law extends the remit of the Supreme Audit Institution (Auditoría Superior de la Federación), permitting real-time audits and oversight over tax-sharing arrangements (participaciones) funds, an important category of transfers to subnational governments. The law also mandates that audit reports are presented to Congress on a more timely basis to increase accountability for efficiency and results, and to better inform budgetary decisions for upcoming fiscal years.
The Law of Fiscal Co-ordination (Ley de Coordinación Fiscal): this law, which has regulated the distribution of federal subsidies and participaciones since 1978, was amended to align with the new provisions of SNAC, particularly concerning the role of the Tribunal in disputes and the expanded remit of the Supreme Audit Institution of Mexico (Auditoria Superior de la Federación, ASF).
The General Law on Government Accounting (Ley General de Contabilidad Gubernamental): this amended financial reporting requirements for states and municipalities, as per the extended auditing of the ASF over participaciones funds (transfers to states).
Source: (OECD, 2017[1]).
At the institutional level, under Article 34 of the Organic Law of the Public Administration of the Federal District (Ley Orgánica de la Administración Pública del Distrito Federal), the Office of the Comptroller-General of Mexico City (Contraloría General de la Ciudad de México) is the leading body for integrity and anti-corruption in the government of Mexico City. Specifically, its responsibilities cover both the prevention and the detection and discipline of corruption in such areas as public procurement, internal control, the efficiency of public administration, human resources management and receipt of reports, and investigation of violations of public servants’ administrative responsibilities.
In addition, the Administrative Office of the Government of Mexico City (Oficialía Mayor de la Ciudad de México), the Supreme Audit Institution of Mexico City (Auditoría Superior de la Ciudad de México), the Superior Court of Justice of Mexico City (Tribunal Superior de Justicia de la Ciudad de México), and Mexico City’s Institute for Transparency, Access to Public Information, Data Protection and Accountability (Instituto de Transparencia, Acceso a la Información Pública, Protección de Datos Personales y Rendición de Cuentas de la Ciudad de México, or InfoDF) play a key role. Their core mandates are public management, human resource management, public procurement, external control, justice and transparency.
Box 1.2 gives an overview of the main players in the system. This chapter offers recommendations on how to improve Mexico City’s public integrity system, how to improve horizontal and vertical co-ordination, and how to ensure that the integrity policies make the greatest impact, taking into account the proposed reform to adopt the Local Anti-corruption System.
Box 1.2. Key actors of the public integrity system of Mexico City
The Office of the Comptroller-General of Mexico City (Contraloría General de la Ciudad de México, CGCDMX) governs all matters relating to the control and evaluation of public management of the different entities that make up the public administration in the capital. Its responsibilities include supervising and monitoring public expenses; monitoring compliance with internal rules; nominating and co-ordinating with the heads of the internal control offices in the government entities issuing guidelines for audits; conducting public procurement; overseeing the complaints mechanism, administering the asset declaration system; initiating and investigating violations of administrative responsibilities; and formulating guidelines on efficiency, transparency, accounting and access to information.
The School of Public Administration (Escuela de Administración Pública de la Ciudad de México, EAP) is one of the institutions responsible for the training and professionalisation of public servants. In recent years, it has developed an integrity training programme based on the code of ethics and guidelines. In addition, the EAP is collaborating with national and international partners to develop good practices in public management.
The Administrative Office of the Government of Mexico City (Oficialía Mayor de la Ciudad de México, or OMCDMX) is responsible for human resources management, modernisation, innovation, administrative simplification, regulatory improvement and service to citizens, public procurement, general services, information technology and communications, real estate assets and, in general, the internal administration of the public administration of Mexico City.
External audit is carried out by Supreme Audit Institution of Mexico City (Auditoría Superior de la Ciudad de México, ASCDMX), which is accountable to the legislative assembly and is responsible for auditing public accounts. The Supreme Audit Institution has the authority to determine damages to the public accounts and assets of the state government and directly establish indemnities and economic penalties.
The judiciary is headed by the Superior Court of Justice of Mexico City (Tribunal Superior de Justicia de la Ciudad de México, TSJCDMX). Judges of the Superior Courts of Justice are appointed by the head of the Executive Power (Mayor) with approval of the legislative assembly. Criminal investigations are carried out by the Attorney General of Mexico City (Procurador General de Justicia), who is nominated by the mayor upon approval of the President of Mexico.
Mexico City’s Institute for Transparency, Access to Public Information, Data Protection and Accountability (Instituto de Transparencia, Acceso a la Información Pública, Protección de Datos Personales y Rendición de Cuentas de la Ciudad de México, or InfoDF) is an autonomous body as guaranteed in the Law on Transparency, Access to Public Information and Accountability (Ley de Transparencia y Acceso a la Información Pública del Distrito Federal). It is in charge of guaranteeing the right of access to public information and the protection of personal data, and promotes transparency and accountability.
Source: Constitución Política de los Estados Unidos Mexicanos, last amendment, February 2017, http://www.diputados.gob.mx/LeyesBiblio/pdf/1_150917.pdf; Asamblea Legislativa del Distrito Federal (2015), Ley Orgánica de la Administración Pública del Distrito Federal vigente; Asamblea Legislativa del Distrito Federal (2017), Ley de Fiscalización Superior de la Ciudad de México; Asamblea Legislativa del Distrito Federal (2016), Ley de Transparencia y Acceso a la Información Pública del Distrito Federal.
1.2. Creating clear responsibilities and co-ordinating public sector entities under the Anti-corruption System of Mexico City
1.2.1. The inclusion of the Council for Evaluation and the Control Body of the Congress in the current design of the Co-ordination Committee needs to be carefully assessed by Mexico City ensuring independence and taking into account the expertise of these bodies.
Mexico City’s goal in instituting the Law of the Local Anti-corruption System (LSLAC) and its secondary legislation is to create a mechanism to establish a coherent integrity system in which key actors can co-ordinate on integrity. It has the potential to align policies and strategies across the government to help implement the legislation.
On 31 January 2017, the Constitution of Mexico City was enacted, enshrining the LSLAC (specifically, Article 63) in law. The internal governance structure of the SLAC-CDMX replicates that of the National Anti-corruption System, and will be made up of a Co-ordination Committee and a Citizen Participation Committee (Figure 1.1).
Figure 1.1. Governance of the Local Anti-corruption System
Source: (OECD, 2017[1]), OECD Integrity Review of Mexico: Taking a Stronger Stance Against Corruption, OECD Public Governance Reviews, OECD Publishing, Paris.
As in most public integrity systems, various public institutions in Mexico City are directly or indirectly involved in either corruption prevention or detection, or both (Box 1.2). The Local Anti-corruption System assembles the key institutions responsible for public integrity both from the public sector and from civil society. Each actor in the system is a key piece of the puzzle for strengthening public integrity (Table 1.1).
The Co-ordination Committee, led by the President of the Citizen Participation Committee, extends at the national level over the three key functions of prevention, investigation and punishment of corruption. Figure 1.2 shows how its design would translate to the context of Mexico City. The mandate of the Office of the Comptroller-General of Mexico City covers prevention, detection and enforcement. It is responsible for ethics, internal control and audit (see Chapter 6 on Internal Control), digital government, human resources management and disciplinary proceedings for less serious offences. So far, these functions have been spread over several directorates within the Office of the Controller General, which has made it difficult to establish a coherent and consistent approach to strengthening integrity (see Chapter 3). Similarly, the new functions granted to the Supreme Audit Institution of Mexico City make it a significant actor in all three areas. It carries out performance audits of integrity systems, gives guidance in developing risk assessment and mapping guidelines, conducts financial and compliance audits, and has a new function to conduct forensic audits and submit evidence to the Tribunal and Special Prosecutor. The Anti-corruption Prosecutor plays a role in investigating and pursuing administrative and criminal offences, while the Administrative Tribunal is responsible for enforcement.
Table 1.1. Government entities involved in the Local Anti-corruption System
Source: Public Administration of Mexico City (2017), Political Constitution of Mexico City; Public Administration of Mexico City (2017), Law of the Anti-corruption System of Mexico City.
Figure 1.2. Responsibilities of the Local Anti-corruption System in the national framework
The institutional arrangement of the anti-corruption system is designed to allow the key actors to better align and co-ordinate policies and strategies in each of the three areas that make up a coherent public integrity system. It is intended to encourage synergies with related agendas, such as transparency and open government, by including Mexico City’s Institute for Transparency, Access to Information, Protection of Personal Data and Accountability (Instituto de Transparencia, Acceso a la Información Pública, Protección de Datos Personales y Rendición de Cuentas de la Ciudad de México, or InfoDF). The goal is to reduce impunity, one of the main reasons that civil society has demanded an anti-corruption system in recent years. Co-ordination between the CGCDMX, ASCDMX, the Anti-corruption Prosecutor and the Tribunal is intended to ensure that no cases fall through the cracks and that procedures and laws are consistently applied (OECD, 2017[1]).
Under the Law on the Local Anti-corruption System, the Co-ordination Committee will include two further actors, the Evaluation Council (Consejo de Evaluación del Desarrollo Social de la Ciudad de México, or EvalúaCDMX) and the Control Body of the Congress (Órgano de Control del Congreso). The inclusion of these two institutions is a departure from the model of the National Anti-corruption System.
From a technical perspective, it may be advisable not to include EvalúaCDMX in the Co-ordination Committee. Given the mandate of EvalúaCDMX is to evaluate social policies in Mexico City, and its authority to provide binding recommendations, it might be better to consider assigning to it oversight of the anti-corruption system and its policies (see Chapter 2). If Mexico City chooses to take advantage of EvalúaCDMX’s expertise and mandates it to conduct evaluations of the system, EvalúaCDMX should not form part of the Co-ordination Committee, to ensure its independence. If it were to participate in the Committee, it would risk real or perceived undue influence from the Committee to return a favourable evaluation.
However, on the other hand, including EvalúaCDMX in the Co-ordinating Committee of the SLAC-CDMX could be helpful given its extensive experience in the methodology of conducting evaluations and designing relevant indicators. This could benefit the Executive Secretariat of the SLAC-CDMX, which is in charge of monitoring integrity policies. Moreover, EvalúaCDMX could include a systematic analysis of risks of corruption in its evaluation of social programmes. The risks identified could in turn inform the anti-corruption system and integrity policies, by singling out priority areas for action.
Incorporating the Control Body of the Congress1 (currently known as the General Comptroller of the Legislative Assembly) in the Co-ordination Committee could provide the system with experience in matters of oversight from the perspective of the Legislative Branch. However, the head of the Control Body of the Congress will be appointed by the Legislative Assembly, which creates a risk of undue influence, in making the decisions of the Co-ordination Committee susceptible to political influence.
1.2.2. The Co-ordination Committee could be strengthened by inviting other key integrity actors to participate on a regular basis.
If the system is to be comprehensive, it may be necessary to include some additional actors to introduce the concept of public integrity in the mainstream. Since the Co-ordination Committee does not represent all the relevant integrity actors, the anti-corruption system fails to acknowledge that it does not have the authority to demand action from other public institutions (Hechler and Peñailillo, 2009[2]). This is in line with the OECD Recommendation (OECD, 2017[3]) that the federal level include additional actors in the National Anti-corruption System. Its formal inclusion in the Co-ordination Committee risks overburdening the system and making meetings of the Committee too unwieldy to be effective. One option would be to invite the relevant institutions to specific thematic meetings of the Executive Secretariat, giving them the right to speak, but not to vote. Making use of this option as much as possible could be a vital way to help ensure that anti-corruption proprieties and strategies are coherent and co-ordinated.
The following institutions could be invited on a regular basis to thematic discussions of the meetings of the Executive Secretariat:
Ministry of Government of Mexico City (Secretaría de Gobierno): Improving vertical and horizontal co-ordination mechanisms between the different government levels (i.e. the federal government, Mexico City and delegations) and between all the relevant integrity actors is the chief aim of the anti-corruption system. The Ministry of Government has key responsibilities for co-ordination and collaboration between the government and territorial demarcations (delegaciones). In addition, by regularly participating in meetings, the Ministry of Government can report back to the head of government to ensure the support at the highest level.
Administrative Office of the Government of Mexico City (Oficialía Mayor de la Ciudad de México): Mexico City has been subject to corruption because its civil service has not been fully professionalised. The General Programme of Development recognised this vulnerability, making professionalisation of the civil service a top priority. Both the Administrative Office and the CGCDMX have competences in human resources management, and one key step would be to create a platform for them to co-ordinate on reforming the civil service scheme, focusing on promoting ethical values in public administration.
Electoral Institute of Mexico City (Instituto Electoral de la Ciudad de México): The weakness of political accountability subjects the public administration to integrity risks and has led to a lack of trust among voters in election results. Involving the Electoral Institute in the anti-corruption system could help encourage coherence between the agenda of the different actors in the public integrity system.
Ministry of Education (Secretaría de Educación): The Ministry could play a role by developing campaigns raising awareness of corruption and by including anti-corruption modules in the curriculum (see Chapter 5 for further details).
Including these actors on an ad hoc basis at the meetings of the Executive Secretariat could significantly help mainstream integrity measures throughout the administration. This participative approach could also help encourage ownership of the different institutions at a technical level.
1.2.3. Two technical sub-commissions of the Executive Commission, on prevention and detection/punishment, could be established.
Bringing together the different integrity actors in the Co-ordination Committee can leverage their expertise in formulating policies or strategies. For example, creating an exchange of expertise in the areas of prevention and detection can help adjust preventive measures, based on reports of whistle-blower cases and investigations. This could increase the coherence of the policies and reduce gaps or overlaps.
There is a risk of disconnection between the high-level discussions of the Co-ordination Committee and the technical levels of the member institutions of the anti-corruption system. Anti-corruption strategies often fail to yield the desired results, due to an overly strong focus on legislative and normative reforms and too little emphasis on follow-through. The tendency is to favour politically attractive high-level prosecution cases over structural reforms that target the root causes of corruption. Overly ambitious objectives, in a context of limited institutional capacity, favour technocratic solutions that do not acknowledge the problem of vested political or economic interests (Hussmann, 2007[4]).
To circumvent these risks, Mexico City could create two consultative technical working groups on prevention and enforcement within the Executive Commission that would meet on a regular basis. This could draw upon the expertise of each member institution, ensuring more in-depth discussion and better-targeted decisions. Prevention and enforcement overlap, but such a division is justified on the technical level, as it involves different government entities or different directorates within the entities. Members of the working groups would include technical staff of the members of the Co-ordination Committee, including members of civil society. Each member of the Co-ordination Committee should nominate technical delegates charged with co-ordinating which representatives should attend the meetings of the two sub-commissions. The technical delegates would also be responsible for briefing their respective head of agency in preparation for the high-level meetings of the Co-ordination Committee. They would also ensure follow-up by their agency on the committee’s decisions. The additional stakeholders proposed as part of the Local Anti-corruption System could also be invited to participate in the working groups (OECD, 2017[5]).
The technical working groups could meet to develop detailed proposals for the annual work plan, consult on policy proposals, monitor and discuss difficulties encountered in implementation and propose adjustments. They could also provide valuable input for the evaluation phase of the annual work plan, and develop strategies to strengthen integrity. This could help focus anti-corruption plans and encourage better policy implementation. This participatory approach could also help generate ownership of the members at a more technical level (OECD, 2017[6]). The Technical Secretary could co-ordinate work between the two technical working groups through regular briefings.
1.2.4. A dedicated contact point for the anti-corruption system in each government entity involved could streamline policy implementation.
By creating new bodies and institutionalising formal mechanisms of vertical and horizontal co-ordination, the SLAC-CDMX is setting up a framework for a more coherent and resilient public integrity system. However, to effect change, all members of the anti-corruption system will need to be actively involved to carry out the activities agreed upon. Under the General Law of the National Anti-corruption System (Article 31) and the Law of the Local Anti-corruption System of Mexico City, the Executive Commission is responsible for making non-binding recommendations based on the annual report, and to monitor the adoption of these recommendations.
Establishing clear expectations for the highest political and management levels will demonstrate a high-level commitment to enhance public integrity and reduce corruption. Mexico City could more strongly involve the management level in each entity to carrying out the policies and activities decided on by the Co-ordination Committee by creating clear responsibilities for government entities and by clarifying the role of each one in fighting corruption. The OECD recommends that a dedicated unit in each entity, responsible for the implementation of the public integrity system, be established. This unit would be tasked to co-ordinate with the Executive Secretariat of the anti-corruption system, reporting on progress and communicating any difficulties encountered in their implementation. In the region of Piura in Peru, for example, all public entities are required to create an Anti-corruption Unit in charge of complying with the objectives, plans, and activities set by Piura’s Regional Anti-corruption Commission (Box 1.3). This unit could also take on the role of the technical delegate participating in the proposed technical working groups (OECD, 2017[7]).
Box 1.3. Regional Anti-corruption Commission in Piura (Peru)
Regional anti-corruption commissions (CRAs) were established in Peru under Law No. 29 976, which also created the High-level Anti-corruption Commission (Comisión Alto-nivel de Anti-corrupción, or CAN), the national body promoting horizontal co-ordination and guaranteeing the coherence of the anti-corruption policy framework in Peru.
One of the tasks of the CRAs is to draft a regional anti-corruption plan. This plan can potentially reflect the specific issues and challenges of the region. However, only six regions have so far developed such a plan (San Martín, Pasco, Amazonas, Cusco, Piura and Huancavelica), and it is not clear how far these plans have been put into operation.
Piura, one of Peru’s regions, set up its regional anti-corruption commission (Piura’s Commission) under Regional Ordinance No. 263 of 2013, which brings together representatives of the executive and the judicial powers, as well as from municipalities, the private sector and professional associations. Piura’s Commission is supported by an Executive Committee responsible for carrying out the policies laid out by the Commission. Co-ordination between the Commission and the Executive Committee is carried out by the Commission’s Technical Secretariat. Finally, governance of the system is completed by the anti-corruption units within each public entity. Their tasks include implementing policies approved by the Commission; helping ensure compliance with the Code of Ethics for the public service; co-ordinating the drafting and approval of the anti-corruption plans; preparing a report on anti-corruption activities, and presenting it at public hearings.
Source: (OECD, 2017[5]), Integrity Review of Peru and ppt from Piura’s Regional Anti-corruption Commission, http://anticorrupcion.regionpiura.gob.pe/detalle.php?idpag=3&pagina=uni_lucha&verper=0&tit=2.
1.2.5. While implementing the Local Anti-corruption System at the local level, the Executive Secretariat could provide support to the territorial demarcations and offer a forum for feedback.
Corruption is a multi-level issue that concerns every level of government. In Mexico, the competences for nine out of the ten procedures perceived to be most corrupt are spread across multiple levels of governments or are the responsibility of municipalities (Table 1.2). Opportunities for certain types of corruption tend to be more common at sub-national levels. In Mexico City, 89% of citizens surveyed say they believe that corruption is frequent or very frequent in state and municipal government (Figure 1.3).
Table 1.2. Administrative procedures perceived to be most susceptible to corruption in Mexico
Source: IMCO, with data from Encuesta Nacional de Calidad e Impacto Gubernamental (ENCIG) 2015, adapted from http://imco.org.mx/indices/documentos/2015_IHE_Presentacion.pdf.
Figure 1.3. Percentage of respondents who believe corruption is “very frequent” or “frequent” in Mexico City, by institution/sector, 2015
Source: INEGI (2015), Encuesta Nacional de Calidad e Impacto Gubernamental 2015, http://www.beta.inegi.org.mx/proyectos/enchogares/regulares/encig/2015/.
During the OECD’s fact-finding mission in Mexico City, it emerged that representatives from the territorial demarcations (delegaciones) had only a limited awareness of the upcoming anti-corruption reforms and, in general, had not successfully “downloaded” integrity policies at the local level. By including the territorial demarcations in the Co-ordination Committee as a member without vote, Mexico City could help to close this information gap. The territorial demarcations were encouraged to contribute to the work of the SLAC-CDMX, in accordance with Article 10 of the SLAC-CDMX Act, which establishes that the heads of the territorial demarcations2 shall be permanent guests of the meetings of the Co-ordinating Committee, with the right to speak only.
In addition, the Executive Secretariat could help the territorial demarcations to build capacity and develop the necessary expertise to run the Anti-corruption System on the municipal level. The Secretariat could conduct a preliminary assessment of existing integrity policies and strategies among territorial demarcations. Based on this information, capacity, funding and policy gaps could be identified and mechanisms to involve the territorial could be designed. A working group of territorial demarcations could be set up to build implementation capacity and create a channel of communication for exchanging good practices. The technical secretary could convene these meetings and provide technical expertise on any difficulties encountered during implementation. Given the limited number of territorial demarcations and the size of Mexico City compared to other states, these regular meetings should not present an organisational problem.
1.2.6. Mexico City will have to allocate adequate financial and human resources to the Local Anti-corruption System to guarantee its effectiveness.
The high-level commitment to the new structure will be mirrored by the financial and human resources dedicated to the SLAC-CDMX. The importance of adequate and reliable funding to carry out the mandate is fundamental. Establishing the SLAC-CDMX will create new institutions and new tools and also demand additional resources from the existing institutions. In addition, the Executive Secretariat will need to be allocated adequate resources to ensure its independence and minimise the risk of undue influence.
Although the greater co-ordination foreseen by the system will create synergies, the reform will make additional financial resources necessary. This will include:
New institutions, such as Mexico City’s Administrative Justice Tribunal (Tribunal Estatal de Justicia Administrativa de la Ciudad de México) and Specialised Anti-corruption Prosecutor (Fiscalía Especializada de Combate a la Corrupción);
New horizontal activities such as the Digital Platform (Plataforma Digital);
Scaling up of staff and activities within already existing institutions;
Strengthening co-ordination mechanisms, with municipalities and the federal level.
Under the General Law of the National Anti-corruption System (Article 26) and the Law of the Local Anti-corruption System of Mexico City (Article 29), the Executive Secretary relies on assets from the government, yearly resources from the state budget and goods transferred. It is unclear how the resources are distributed between the action plan activities and staffing/operation of the Executive Secretariat and Commission. It is also not clear how the fee for participants in the Citizen Participation Committee (contratos de prestación de servicios por honorarios), the salary for the staff of the Technical Secretariat, as well as the activities of the Co-ordination Committee are budgeted for. For example, on the national level, the five members of the Citizen Participation Committee will receive a monthly salary of MNX 100 000 (EUR 4 986). If this is the case, the salaries for the Citizen Participation Committee alone would amount to MNX 6 million (EUR 299 176), which has not been budgeted for (Molina, 2017[8]).
In July 2016, the Inter-institutional Preparatory Council for the Implementation of the Anti-corruption System of Mexico City (Consejo Interinstitucional Preparatorio para la Implementación del Sistema Anticorrupción de la Ciudad de México, or COIPISA) calculated an overall cost of MNX 131 million (around EUR 5.6 million) for the Local Anti-corruption System in 2017 (Proceso, 2016[9]). Similarly, at the national level, the Finance Research Centre of the Chamber of Deputies estimated that the national framework of the National Anti-corruption System would cost around MNX 1.5 billion, or around EUR 65 million (García, 2016[10]). Mexico City’s budget for 2017 did not foresee any budget for creating the Local Anti-corruption System of Mexico City, although secondary legislation was passed on 1 September 2017. However, for 2018, the Expenditure Budget of Mexico City (Presupuesto de Egresos de la Ciudad de México, or PECDMX)3 awarded MNX 287 million (equivalent to approximately EUR 12.3 million) for the implementation of the Anti-corruption System of Mexico City, of which MNX 39 million was granted to the Ministry of Government of Mexico City (Article 16, PECDMX), MNX 100 million to the Comptroller-General’s Office (Article 17, PECDMX), MNX 48 million to the Attorney-General (Article 18, PECMDX) and MNX 100 million to the Administrative Justice Tribunal (Article 19, PECDMX). In all cases, the resources were allocated to these agencies to implement the SLAC-CDMX within the scope of their competencies. An assessment of financial needs will need to be conducted in subsequent years and the continuation of funds ensured, to guarantee the operation of the system.
1.3. Managing the risk of undue influence of appointments
1.3.1. To shield the Technical Secretary from undue influence, Mexico City could mandate that the Governing Body of the Local Anti-corruption System have the authority to appoint and remove the Secretary.
The Technical Secretary, who heads the Executive Secretariat and acts as the Secretary of the Co-ordination Committee, is responsible for executing and follow-up on the decisions of the Co-ordination Committee. In addition, this officer prepares the meetings of the Co-ordination meeting on the technical level. Given the sensitivity of integrity policies and its high political relevance, the Technical Secretary may need to provide expertise for and execute decisions that affect powerful vested interests (OECD, 2017[7]).
Quite apart from the risk of political interference, international experience shows that integrity policies, especially preventive measures, require coherence and continuity over a long period before they show any impact. Clearly, regulating the position and protecting it from arbitrary removal and from short-term political fluctuations ensures continuity (OECD, 2017[6]). In the context of the SLAC-CDMX, such continuity is particularly important. Given that the presidency of the Co-ordination Committee rotates each year among the members of the Citizen Participation Committee, this is not easy to ensure.
Under the Law on the Local Anti-corruption System (Article 33), the Technical Secretary will be appointed by the Congress of Mexico City, based on the proposal by the Commission on Transparency and Corruption and the Commission on Accountability and Control of the Supreme Audit Institution, and confirmed by simple majority of the present members of Congress. Similarly, the Congress can remove the Technical Secretary. This appointment and removal process is at variance with the process at the federal level, and as such, could be challenged in court. Crucially, this procedure should be reviewed for technical reasons. Mandating Congress to appoint and remove the Technical Secretary makes the appointment a political process vulnerable to political influence. This is further exacerbated by the fact that the criteria required for the position as set by the law does not specify, as has been stipulated at the federal level, that the candidate shall not be affiliated with any political party.
The Governing Body of the Executive Secretariat, representing all members of the Anti-corruption System, would be best equipped to select a Technical Secretary, based on technical expertise and experience. Given the important role the anti-corruption system has allocated to civil society through the Citizen Participation Committee, the Committee should take the leading role in the appointment and removal process.
Mexico City could consider a legal reform granting the Citizen Participation Committee the authority to submit three candidates for the position to the Government Board for ratification. This procedure would safeguard the appointment and removal from undue political interest. In addition, it would follow the national model, which mandates that the Governing Board appoint and remove the Technical Secretary. Furthermore, the stipulation that the official have no affiliation with a political party could be introduced to safeguard against political interference.
1.4. Improved accountability through a whole-of-society approach
1.4.1. The Citizen Participation Selection Commission and members of the Citizen Participation Committee should be appointed under clear and transparent criteria and held accountable to the same integrity standards as public servants.
Article 63 of the Constitution of Mexico City provides for a Citizen Participation Commission, made up of five individuals independent of the Government of Mexico City and known for their expertise and commitment to transparency, accountability and the fight against corruption. The Law of the Local Anti-corruption System mirrors the structure set up under the General Law of the National Anti-corruption System.
The Constitution and the Law on the Local Anti-corruption System give civil society a leading role in overseeing implementation of the anti-corruption system. A representative of the Citizen Participation Committee presides over the system’s Co-ordination Committee and Governing Board. The Citizen Participation Committee also sits on the Executive Commission, which is tasked with producing a yearly annual report on the activities and progress of anti-corruption initiatives.
The institutional framework fulfils the principles of the OECD Recommendation (OECD, 2017[3]) to involve society at large in building a public integrity system, updating and involving stakeholders regularly in its operation. However, as noted by a leading research and investigation centre in Mexico (Fundar), one of the main challenges in implementing the Local Anti-corruption System is the configuration of the Citizen Participation Committee, which should include substantial mechanisms ensuring that citizens are in fact representative of the local systems (Animal Político, 2017[11]).
The members of the Citizen Participation Committee are selected by a Citizen Selection Commission consisting of members of civil society specialised in anti-corruption, accountability and audit, and representatives of higher education institutions, who are selected by Congress (under Article18 of the Law on the Local Anti-corruption System) (Figure 1.4).
Figure 1.4. The selection process of the Citizen Participation Committee
The Congress has a decisive role in the final selection of the members of the Citizen Participation Committee, because it selects the members of the Citizen Selection Commission. Selection of the Commission should thus be conducted according to transparent criteria, to ensure the inclusiveness of the process. Mexico City could set some basic criteria for the selection of the Citizen Participation Commission, to counteract the perception of undue influence. For example, in Nuevo León, the Law on the Anti-corruption System clearly sets out this process. In that instance, civil society is deputed to propose candidates, whose qualifications are assessed by the Anti-corruption Commission of Congress, which selects three candidates. These are proposed to Congress, which has the final vote. In addition, the law stipulates the qualifications required of each candidate. Mexico City could consider a similar amendment to the law. Congress could also consider providing additional information on why and how (methodologies, documents, list of candidates, planning, hearings) the members of the Selection Commission were selected. An ad hoc online portal could increase citizens’ awareness and participation, and also scrutiny of the selection process led by the Legislative Power.
In fact, the Legislative Assembly, through the Agreement between the Commission on Transparency and Corruption and the Commission on Accountability and Control of the Supreme Audit Institution, has published the call for candidates for the Selection Committee. Among the eligibility requirements are: Mexican citizenship, exercising full political and civil rights, residency in Mexico City, having a good reputation and not having been convicted for fraud, falsification, abuse of confidence and similar breaches that could seriously harm its public reputation, possession of voting credentials with a photo, not having held the position of a Minister of the State, Attorney-General of the Republic, senator, member of the federal or local legislative, governor of a state or head of Mexico City, and having contributed to oversight, accountability and the fight against corruption.
The call for candidates and the documents on the integration of the Anti-corruption System have been published online (http://infodf.org.mx/anticorrupcion/index.html). Mexico City has taken an important step towards ensuring the transparency of the process. These criteria could be included in the law, to ensure their consistent application.
Similarly, the Selection Commission could consider providing additional information on all candidates for the Citizen Participation Committee, such as:
methodology for assessing candidates;
list of candidates;
documents submitted by candidates;
chronology of hearings;
deadline for taking a decision and justifying the final decision.
In addition, members of the Citizen Participation Committee should adhere to the same integrity standards as any other public servants, file all three mandatory declarations and disclose any real or potential conflict of interest. These declarations could be made public on the Digital Platform.
1.4.2. Inviting the private sector to meetings of the Citizen Participation Committee would ensure a more inclusive public integrity system based on the concerns of society at large.
The anti-corruption system aims to involve civil society in the public integrity system. An inclusive approach can improve the design and impact of integrity policies, since policies can benefit from the varied expertise of more stakeholders. Similarly, it can help to create public awareness of the benefits of public integrity, which could be coupled with civic education on public integrity in schools (see Chapter 5 on whole-of-society/education).
While this involvement is a positive step, the anti-corruption system, both on the national level and in Mexico City, does not involve the private sector and as such, excludes a core group of stakeholders. Corruption often occurs at the intersection between public and private interactions, as well as between private sector actors. Excluding the private sector may mean that the system fails to address a large proportion of the corruption in Mexico. Alternatively, the lack of buy-in from the public could threaten its implementation (OECD, 2017[3]).
The Citizen Participation Committee could thus invite private sector representatives to its meetings, and consult with them regularly on the technical level. Implementation of initiatives involving the private sector should also include civilians as partners. This would generate greater awareness and encourage buy-in from the private sector. Colombia and Peru (Box 1.4) have taken a multi-stakeholder approach to ensure a whole-of-society approach (engaging religious institutions, media and the trade unions) to fighting corruption.
Box 1.4. Government and non-government stakeholders in National Anti-corruption Commission
Colombia
The Anti-corruption Statute established the National Committee for Morals (CNM), a high-level mechanism to co-ordinate strategies to prevent and fight corruption. The CNM is a multi-partite body composed of the President of the Republic, the Inspector-General, the Prosecutor-General, the Comptroller-General, the Auditor-General, the head of Congress and the President of the Supreme Court, among others. The National Committee for Morals is responsible for information and data exchange among the bodies mentioned above in order to fight corruption, and it also establishes mandatory indicators to assess transparency in the public administration. It adopts an annual strategy to promote ethical conduct in public administration, including workshops, seminars and pedagogical events on such topics as ethics and public morality, as well as the duties and responsibilities of public officials.
The same Anti-corruption Statute of 2011 created the National Citizens Committee for the Fight against Corruption (CNCLCC). This represents Colombian citizens in assessing and improving policies to promote ethical conduct and curb corruption in both the public and the private sectors. The committee includes representatives of a wide array of sectors, such as business associations, NGOs dedicated to the fight against corruption, universities, media, social audit representatives, the National Planning Council, trade unions, and the Colombian Confederation of Freedom of Religion, Awareness and Worship. CNCLCC issues a yearly report on anti-corruption policy evaluation, and it promotes codes of conduct for the private sector – especially to prevent conflicts of interest. It closely monitors the measures taken in the Anti-corruption Statute to improve public management as well as public procurement, the anti-paperwork policy, the democratisation of Public Administration, access to public information and citizen services, and it also promotes the active participation of social media in reporting corruption.
Peru
Peru’s High-level Anti-corruption Commission (Comisión Alto-nivel de Anti-corrupción, or the CAN) was established by Law No. 29976 and its regulation in Decree No. 089-2013-PCM, which also outlines the CAN’s mandate and responsibilities. The CAN’s main activities are organising efforts, co-ordinating actions of multiple agencies, and proposing short-, medium-, and long-term policies directed at preventing and curbing corruption in the country.
As in Colombia, the CAN is integrated with public and private institutions and civil society and co-ordinates efforts and actions on anti-corruption. Non-governmental actors include representatives of private business entities, labour unions, universities, media and religious institutions. Bringing diverse stakeholders regularly together around the table aims at encouraging the horizontal co-ordination and guaranteeing the coherence of the anti-corruption policy framework, but also contributes to protecting the CAN from undue influence by narrow interests.
Table 1.3. Composition of the CAN
Sources: (OECD, 2017[6]), OECD Integrity Review of Colombia, OECD Publishing, Paris; (OECD, 2017[1]), OECD Integrity Review of Mexico, OECD Publishing, Paris; (OECD, 2017[5]), OECD Integrity Review of Peru, OECD Publishing, Paris.
Proposals for action
The Local Anti-corruption System of Mexico City is an important step towards developing a coherent and comprehensive integrity system. However, challenges involved in the implementation process and in the subsequent operation of the system persist. Therefore, the OECD recommends that Mexico City consider taking the following actions:
The Local Anti-corruption System: Creating clear responsibilities and strengthening co-ordination
Mexico City could consider including the Council for Evaluation and the Control Body of the Congress in the Co-ordination Committee, given their expertise.
The Co-ordination Committee could broaden its membership and invite other key integrity actors on a regular basis.
To reinforce the impact of the Local Anti-corruption System, two technical sub-commissions of the Executive Commission, on prevention and detection/punishment, could be established.
Creating a dedicated contact point for the anti-corruption system in the entities of the government would streamline implementation of policies throughout the government.
To ensure the implementation of the Anti-corruption System at the local level, the Executive Secretariat could provide implementation support to the territorial demarcations (alcaldías) and thus guarantee a feedback mechanism.
Mexico City will have to allocate adequate financial and human resources to the implementation and operation of the Local Anti-corruption System to guarantee its effectiveness.
Managing the risk of undue influence of appointments
To shield the appointment and removal of the Technical Secretary from undue influence, Mexico City could mandate that the Governing Body of the Local Anti-corruption System appoint and remove the Secretary.
Improved accountability through a whole-of-society approach
The Citizen Participation Selection Commission and the members of the Citizen Participation Committee should be appointed on the basis of clear and transparent criteria and held accountable to the same integrity standards as public servants.
Inviting members of the private sector to the meetings of the Citizen Participation Committee would help ensure a more inclusive public integrity system, based on the concerns of society at large.
References
[11] Animal Político (2017), Sistemas Anticorrupción estatales, con participación ciudadana a medias y sin transparencia, https://www.animalpolitico.com/2017/07/anticorrupcion-estatales-fundar/.
[10] García, C. (2016), “Sistema Anticorrupción costará 1,506 mdp al erario”, El Universal, http://www.eluniversal.com.mx/articulo/nacion/politica/2016/09/19/sistema-anticorrupcion-costara-1506-mdp-al-erario (accessed on 04 December 2018).
[2] Hechler, H. and M. Peñailillo (2009), “Institutional arrangements for corruption prevention: Considerations for the implementation of the United Nations convention against corruption article 6”, U4 Issue 4, http://www.u4.no/publications/institutional-arrangements-for-corruption-prevention-considerations-for-the-implementation-of-the-united-nations-convention-against-corruption-article-6/.
[4] Hussmann, K. (2007), “Anti-corruption policy making in practice: What can be learned for implementing Article 5 of UNCAC?”, U4 report 2, http://www.u4.no/publications/anti-corruption-policy-making-in-practice-what-can-be-learned-for-implementing-article-5-of-uncac.
[8] Molina, H. (2017), “Queda conformado el Comité Anticorrupción”, El Economista, https://www.pressreader.com/mexico/el-economista-m%C3%A9xico/20170131/281582355356267.
[7] OECD (2017), OECD Integrity Review of Coahuila, Mexico: Restoring Trust through an Integrity System, OECD Public Governance Reviews, OECD Publishing, Paris, http://dx.doi.org/10.1787/9789264283091-en.
[6] OECD (2017), OECD Integrity Review of Colombia: Investing in Integrity for Peace and Prosperity, OECD Public Governance Reviews, OECD Publishing, Paris, http://dx.doi.org/10.1787/9789264278325-en.
[1] OECD (2017), OECD Integrity Review of Mexico: Taking a Stronger Stance Against Corruption, OECD Public Governance Reviews, OECD Publishing, Paris, http://dx.doi.org/10.1787/9789264273207-en.
[5] OECD (2017), OECD Integrity Review of Peru: Enhancing Public Sector Integrity for Inclusive Growth, OECD Public Governance Reviews, OECD Publishing, Paris, http://dx.doi.org/10.1787/9789264271029-en.
[3] OECD (2017), OECD Recommendation of the Council on Public Integrity, http://www.oecd.org/gov/ethics/Recommendation-Public-Integrity.pdf.
[9] Proceso (2016), Sistema Anticorrupción en la CDMX costaría al menos 131 mdp, http://www.proceso.com.mx/447513/sistema-anticorrupcion-en-la-capital-costaria-al-menos-131-mdp.
Notes
← 1. Article 29.E.6 of the General Constitution of Mexico City establishes that the Congress of Mexico City shall have an internal control body that shall exercise its functions within the framework of the national and local anti-corruption system. The head of the internal control body shall be appointed by two thirds of the members of Congress, from a list of three candidates proposed by the Citizen Participation Committee of the Anti-corruption System. In the event that the Congress rejects the proposal, the Committee will submit a new proposal within 30 days. If the second three candidates are rejected, one of the three proposed candidates will be chosen at random. So far, no other regulations have been issued on the functions and co-ordination schemes of the Control Body of the Congress.
← 2. As a result of the new Constitution of the Mexico City issued on 5 February 2017, which was to take effect on 17 September 2018, Mexico City will cease to be a Federal District and become a Federal Entity. As a result, the territorial demarcations will be transformed into municipalities.
← 3. The Expenditure Budget of Mexico was consulted on 17 April 2018 at the following link: https://data.consejeria.cdmx.gob.mx/portal_old/uploads/gacetas/97e4e819c6cf113706e3340105929a52.pdf.