Lack of political will and inadequate independence of judges and prosecutors pose the main challenges to implementing anticorruption policies in Latin America, according to a report by the Lawyers Council for Civil and Economic Rights of the Cyrus R. Vance Center for International Justice. The recently published “Latin America Anticorruption Assessment 2020,” available in English, Spanish, and Portuguese, delineates legal efforts and shortcomings to preventing and redressing corruption in eight countries: Argentina, Brazil, Chile, Colombia, Guatemala, Mexico, Panama, and Peru.

Media throughout the Americas took note of the assessment. La Hora, El Periódico, and A Primera Hora in Guatemala; Milenio, El Economista, Contrarréplica and Aristegui Noticias in Mexico; and La Prensa, and Foco in Panama reported on the assessment. At the regional level, LatinVex, LexLatin, Líder Legal, and BNAmericas interviewed Lawyers Council members Todd Crider (Simpson Thacher and Vance Center Committee), Alberto Rebaza (Rebaza, Alcazar & De las Casas, Peru), Luciana Tornovsky (Demarest Advogados, Brazil), Alfonso Carrillo (Carrillo & Asociados, Guatemala), and Jaime Chávez Alor, the Vance Center’s Latin America Policy Director and editor of the report.

Unlike other efforts that focus on measuring corruption or its perception, the assessment follows a strictly legal approach to analyze legislative and regulatory efforts aimed at preventing, targeting, and prosecuting corruption. In addition to presenting the formal legal framework, it provides the perspective of legal professionals engaged in anti-corruption practice in various sectors, including law firms, businesses, academia, civil society organizations, human rights defenders, and others.

For each of the countries reviewed, the assessment addresses key aspects in the fight against corruption: public and private sector corruption; complaint mechanisms; whistleblower protection; specialized agencies; institutional coordination mechanisms; civil society engagement and participation; and transparency and access to information.

The outcome of the research was divided into three categories: legal framework; implementation; and governmental bodies. With this information, the methodology ranks the countries using quantitative criteria regarding the success of their anti-corruption efforts from zero (lowest) to ten (highest). In the overall ratings, Chile scored the highest and Guatemala the lowest.

The assessment highlights the following findings: Argentina’s legal framework is generally satisfactory, but its most significant shortcoming involves inadequate regulatory implementation resulting from the lack of (i) political will; (ii) political independence of the anti-corruption agencies; (iii) economic and human resources; and (iv) formal mechanisms for civil society engagement and participation. Brazil’s legal framework has notably improved but, in addition to undue political influence and a lack of political will to effectively implement the anti-corruption legal framework, there is a need to establish corporate criminal liability in connection with acts of corruption. Chile’s regulatory framework is generally effective, and the governmental agencies and authorities have the capacity and political independence to implement the anti-corruption regime effectively. Colombia shows inadequate implementation due to lack of political will and absence of mechanisms for detecting and preventing corruption.

In Guatemala, the legal framework is deficient and is characterized by significant institutional weakness. Anti-corruption efforts are led by certain individual government officials rather than by institutions. Despite having a solid and comprehensive legal framework, Mexico stands out for a lack of regulatory implementation and reduced institutional capacity. In addition, anti-corruption authorities are subject to political influence. Despite being the only jurisdiction that maintains a beneficial ownership registry, Panama displays a deficient legal framework and a lack of institutional capacity and fundamental elements required to combat corruption. Finally, Peru has one of the strongest legal frameworks, but its implementation is negatively affected by flaws in procedural rules and a lack of political will.

This regional analysis shows that most Latin American countries follow an ex-post facto approach of sanctioning corruption through the criminal system. Preventive efforts to reduce corruption, in both the public and private sectors, are insufficient. Similarly, important factors in countering corruption, including institutional coordination mechanisms, incentives to file complaints, and rules providing for community engagement and participation in anti-corruption efforts, are practically non-existent or minimal. Additionally, anti-corruption mechanisms and efforts in the public sector are focused on the executive branch, and largely absent in other governmental agencies and institutions. Regarding corruption in the private sector, most countries have anti-corruption compliance programs in place. However, their implementation is optional and, except in one instance, there are no clear compliance and enforcement guidelines available.

With regard to implementation of the anti-corruption legal framework, both the lack of political will and of independence of institutions represent the main obstacles in preventing, targeting, and punishing corruption. In some countries, the lack of political independence of the judiciary and criminal prosecutors, and the need for more human and financial resources essential to countering corruption, are of great concern. Although there are significant advances in transparency as a mechanism to prevent corruption, only Panama has a registry of beneficial ownership of companies in place and is making efforts to implement it. Finally, in no country was there an emphasis on human rights in the fight against corruption. This has broad implications in the exercise of the rights of victims of corruption and in their ability to obtain redress as a result.

In the assessment, the Lawyers Council for Civil and Economic Rights in the Americas calls on the legal community to address regional and country-level challenges that it identified. The recommendations highlight the importance of promoting 1) the use of technology in the development and implementation of mechanisms to prevent corruption, 2) regional cooperation and the involvement of the private sector and the legal community in promoting best practices, and 3) establishing an anti-corruption rapporteur within the Inter-American Human Rights System.

The Lawyers Council for Civil and Economic Rights hosted a regional webinar in July to consider the main findings of the report. Panelists included Ambassador Julissa Reynoso (Assistant to the President and Chief of Staff to Dr. Jill Biden, and Co-Chair of the White House Gender Policy Council); Ricardo Zuñiga (Special Envoy for the Northern Triangle – U.S. Department of State), Jaime Chávez Alor (Vance Center Latin America Policy Director), Alfonso Carrillo (Carrillo & Asociados, Guatemala), Leonel Pereznieto (Creel, García-Cuellar, Aiza & Enríquez, Mexico), Alberto Rebaza (Rebaza, Alcázar & De Las Casas, Peru), Ignacio Martín Meggiolaro (MBP Partners Abogados, Argentina), Pablo Guerrero (Barros & Errázuriz, Chile), Eloy Rizzo (Demarest Abogados, Brazil), and Ramón Ricardo Arias (Galindo, Arias & López, Panamá).

View the webinar here.