"We Need a National Accord to Control Corruption"
By Danilo Aguirre, journalist, lawyer and National Assembly representative from 1984 to 1997-first with the FSLN and then with the MRS-who participated in one of the commissions that investigated the narcojet scandal. In a talk looking toward the future, he shared with envío his views on past and present corruption in Nicaragua.
IN NICARAGUA, THE GUIDE WIRE OF THE STRUGGLE FOR DEMOCRACY RUNS PARALLEL TO EFFORTS TO ERADICATE CORRUPTION. THOUGH THE many scandals we are observing today may frustrate us, like someone who discovers that for years he or she has actually only been going around in circles, we must learn to value the forward steps we have already taken. To take them further could be the most substantial element of that "national accord" that is so talked about.
Beyond ideologies and calls to ethical behavior, corruption exists where spaces are left open by a country's lack of institutionality and democratic development. The corruption expressed in the narcojet case reveals the door to corruption that we have not yet managed to close.
We Nicaraguans have not been simple spectators of the events of this end-of-century. We are the protagonists of a bloody fight to achieve justice; we lived through a process geared to develop the accomplishments of that fight and we saw afterward how our dreams and hopes slipped through our fingers. We have learned something from being part of this process.
We learned that liberties cannot be entrusted to the messiahs for them to return them to us in an improved form. Our historical experience has taught us that liberties given over are never returned, that the messiahs get all mixed up in power struggles and the people end up with less than they had when they began to fight. We also learned that wealth is not generated nor is development achieved if institutionality, democracy and respect for the law do not work. Because democratic institutions and the principle that the law should be above everything else are realities closely linked to economic growth. And we learned that it is necessary to grow, to develop and to generate wealth so as then to distribute it justly and equitably. There can be no social justice in the distribution of wealth if the wealth that is to be distributed is not first produced.
The history of humanity has been a continuous struggle for liberty. Humanity struggles for liberty, to extend its liberties, and to bequeath a system that guarantees and assures the permanence of conquered liberties. Democracy is a system of institutionalized liberties. The struggle for democratic institutionality is a way to defend liberties won in the popular struggles.
Nicaragua has gone through various stages from the discretionality of the first governments of the federated Central American state and the independent republic—which offered economic privileges to those who attained political posts largely because of their wealth—to the laws now established to regulate the administration of state goods. In these stages the abuse of political power has undermined all legal efforts to guarantee the probity of public functionaries and the institutional control of their actions.
The regulation of strict compliance with the public spending reflected in the Budget of the Republic, prohibitions on natural resource abuse, the building of institutions like state auditing boards or comptrollerships, the law as the only faculty available to the head of state for making economic decisions all reveal the successful efforts of struggles already fought. But why has corruption, by violating or vaulting these containment walls, always ended up putting its seal on the different governments Nicaragua has had for over half of this century.
What is corruption's place in our history? The economic institutionality in place at the end of Spanish colonization and the process of building the Republic already began to produce some types of corruption. The dominant class and the oligarchy generated inequalities and enriched only a small group of families through the concessions given by successive governments to divvy up the incipient wealth the country generated in that epoch: liquor production, coffee cultivation, etc. This initial "corruption" was understood as something natural, just as it was "natural" to limit suffrage to men or the educated or to restrict access to education. The marginalization of the indigenous communities that still remained and the preponderance of the Pacific over the Atlantic were also seen as "natural." That is how Nicaraguan society began to be constructed.
Throughout the 19th century and until the end of the 1930s, personal or family enrichment originated in the oligarchic management of public favors. This management was always wrapped up in the contradictions of the political factions, and almost always ended up in bloody civil wars.
Even as this structure of oligarchic privilege was being consolidated, the dispossessed classes never stopped fighting for their liberty. Although the development of most of these struggles have become invisible to us, we see their mark in the nation's Constitution, where the "natural" discriminations from the early days were eliminated bit by bit.
Throughout Nicaragua's constitutional history, the fight for liberty and equality—for universal suffrage, for women's rights, and, in general, to guarantee citizens' rights before the state—ran a path parallel to the establishment of the institutions that were created to build and strengthen the democratic ideal.
The 1858 Constitution already had some advances with respect to the phenomenon of corruption. They appear more clearly in the 1893 Constitution, which speaks for the first time of public auctions of state goods and of protecting and preserving their management, of the obligation to restrain public spending according to budgetary limits, and of the need to submit administrative contracts to public opinion.
The process continued until the 1939 Constitution, which extended public protection to natural resources and established the obligation to dispose of state goods only through laws and by submitting them to auctions or bids. That Constitution clearly established, for the first time, that no public official can dispose of state goods except through the law. This disposition was maintained until the 1974 Constitution.
Reviewing some Gacetas from Sandino's times, which record his pact with President Sacasa, it can be seen how each economic assignment to each of the hundred men who were going to stay with Sandino when the war ended appeared minutely registered and related to the distribution of the national budget. It is concrete proof of the efforts already being made in those years to subject the state to the law in everything referring to economic tutelage. If our society had continued along that path, we could possibly be living in a different Nicaragua today.
Structural corruption appeared, also for the first time, in the same 1939 Constitution. And it appeared because the founder of the dynasty, Anastasio Somoza García, incorporated into the Constitution the option for a foreign power—the United States—to build a canal, as established in the Chamorro-Bryan Treaty. As compensation for inserting this into the first article of the Constitution—which refers to Nicaraguan sovereignty over its territory, and exempts the territory that the canal project would require—the first Somoza received, and used for his personal benefit, the first of many payments provided to build a highway to the Atlantic coast, which today is no more than a hellish track.
During World War II, with the passivity and even complacency of the political class, particularly of the two historical parties, Liberals and Conservatives, Somoza García adjudicated the immense fortune of Germans in Nicaragua in an auction run by a National Guard colonel with his weapon drawn. Somoza pulled off this theft with total impunity. Years later, in a celebrated confrontation we had on Radio Mundial, Luis Somoza would say that had been "a legal action that the Bank of London agreed with totally." Whenever foreign powers got close to Nicaragua, they left behind paths of corruption. The goods stolen from the Germans were "sanctified" afterwards through "third-party good faith buyers"—just as recently happened with so many ill-gotten properties—thus engaging all of society in the final results of a great corruption.
During those years, Somoza García also destroyed the institutionality that the US interventionists had set up for the Pacific Railroad. Naming a humble operator as administrator of the railroad, he turned this business—the biggest, richest and best managed of the period—into the takeoff point from which he built Montelimar and Puerto Somoza, platforms of his corruption.
With the emergence of new forms of public income, the growing Somocista dictatorship imposed official corruption on Nicaragua, creating a state parallel to the formal one and taking over and militarizing key positions where the evolving state was producing the greatest amount of resources. This form of open, brutish corruption coexisted with merely formal institutions. It intensified as the political class became corrupted, abandoning the principles that sustain democracy, and as the always damaging foreign interference expanded.
Somocismo formed its own system. It united all the military, political and civil powers and subjugated a mediocre and castrated business class to the space to which Somoza limited it. Somocismo did not have oligarchic origins; it was the imposition on liberalism of a sector of the lower middle class backed by the National Guard. Somoza enthroned is power around this class, evidenced by the fact that the immense majority of Somocista legislators came from low sectors. Somoza was always very suspicious of the oligarchs, who were always trying to overthrow him because, as a class, they felt ousted from power by a vulgar military chief.
The only period during Somocismo in which an attempt was made to create a certain status quo was during the government of René Schick who, though considered "Somoza's hatchet man," worked during his term to guarantee the rule of law. It was during his administration that the rule of law was first talked about at a grassroots level in Nicaragua. With that concept, Schick, the Nicaragua's last illustrious President, wanted to indicate that, although he would do nothing to change what was in place, he would also not allow actions to take place outside of the law, or people to be prosecuted illegally, or have a non-existent law applied to them. It was a small but laudable effort to make the laws and institutionality work as a brake on arbitrariness. After him—after 1967—Somoza Debayle stepped on everyone, and after 1972 he did so with the complicity of a sector of the Conservative Party.
Despite all the mistreatment, the Somocista dictatorship took care of the formal existence and even the functioning of the department that oversaw budget implementation, an office that received probity declarations from functionaries and a bidding law for administrative contracts. In the political sphere he worked to guarantee a "fair" distribution of seats in Congress and posts in autonomous entities to the group of Conservatives who, by turn, collaborated with and legitimized the electoral events.
During Somocismo, public spending did not need structural adjustments like today. A colonel or a general earned 1,200 córdobas in the budget, but owned mansions and farms. The Somocista state was formally small. But, parallel to it, Somoza organized a structure of corruption that crisscrossed everything. Less than 10% of what citizens paid for car registration, drivers' licenses, fines or a passport entered the national treasury. With the other 90% he formed a single mass that was periodically distributed from top to bottom among rotations of National Guard officers, leaving the lion's share for the governing family.
This corrupt parallel state started at the bottom, with the shaved-head Guard recruit who terrorized the people of the Oriental market, and went as high as the boards of national financial institutions, passing through those in the middle who charged bribes in canteens, brothels and gaming houses or did nighttime dragnets of citizens. Thus a closed network of structured corruption was formed as a government system.
This structural corruption had no transition. It began when the founder of the dynasty took over other peoples' land and cattle, and lasted through the final Somoza, who administered large businesses with the international mafia. In between were celebrated episodes of shareholders who installed imitation industries protected by the Central American Common Market at the beginning of the 1960s, and the deals done during the 1972 earthquake tragedy.
The media began to belligerently denounce the corruption at the end of the 1940s, but it was an apparently innocuous belligerence. In those years, the generalized corruption in politics and business bought off the bulk of communicators, and power was indifferent to and even rejected the accusations. The journalists were exposed to official repression, which ranged from economic marginalization to jail and torture, even assassinations. I said that the accusations were "apparently" innocuous but in reality they had effects. Media accusations filled the bookpacks of those had no power but were preparing themselves to get it. Repression against journalists was perhaps one of the highest bills that the Somocista dynasty had to pay in the years of its downfall.
The total corruption installed by Somocismo, managed from above with a willingness to structure it with both civilian and military powers, could not be ended partially or through purification movements. It had to disappear, together with all of the apparatus that fed and sustained it. And that was what happened on July 19, 1979.
The new government that emerged in 1979 put an end to the entire structure of Somocista corruption, but underestimated the informal apparatus that still existed. With few institutional responses, it ended up reproducing the same formula in the state dynamic: join together party, politics and military forces in the governing group. The new government shared with the previous one broad discretionality and disregard for the law and its institutions. The nobility engendered in the fight against the dictator, the social objective of transforming economic power and the emergence of a new dominant sector prevented this broad discretionality and disrespect for the law and institutions from translating into structural corruption, but the gap always remained open.
From this reality we learn a lesson: if a state trusts in the honesty of its functionaries to safeguard state goods, we'll hit it lucky and be governed by honest people the first day, but the next day there will be a half-honest person and the next a thief.
During a good part of the Sandinista government, the acts of corruption occurred among the middle sectors of the government apparatus. What was happening higher up? The base was being laid for a gigantic accumulation of goods that, bought with state resources, appeared as private sector corporations. All of this had a justification: it was a way to deal with the US blockade—which affected the imports the country needed—and with the possibility of a US military invasion. This strategy coexisted with ignorance and contempt for institutional controls over state goods.
Corruption can only be fought and exterminated with institutional controls, not with rhetorical messages about the ethics of functionaries or agents of civil society. What happened with the Sandinista government proves this. The personal ethical conditions that were maintained without corruption becoming structural fell to pieces at the moment of the electoral defeat; what had been accumulated with public funds and held in private hands was never returned to the state. The ethics of the functionaries lasted only as long as the government, and the corruption of institutions became corruption with state goods.
Although they respond to two systems separated by profound differences, the corruption of the Somocista years and that of the revolutionary years have a common denominator: the absence of institutional controls in the state. Controls cannot be substituted by either formal mechanisms or ethics, even when the most commendable tasks are being developed. If institutional controls have no chance to function, corruption will always have an open door.
The government that took office in 1990 no longer had nor could it have the power of accumulation that facilitated corruption in the two previous governments. But it inherited authoritarian legal conditions centralized in the executive branch. These rapidly turned into a new temptation for corruption. In the new government there was no longer the military power or political power to tempt a new period of structural corruption, but nor were there institutional safeguards against other forms of corruption.
Among other things, the new government came to office with a proposal for the state diametrically opposite that of the previous ten years. The revolution had created a gigantic state while the new government of the 1990s operated on the premise that everything had to be privatized. Proclaiming that the state should not get involved in anything, the Chamorro government took on the task of converting into private activity the gigantic public enterprise formed by the Sandinistas.
The entire chapter on state goods disappeared from the 1987 Constitution, leaving no dispositions about transferring or disposing of those goods. That same Constitution gave the President broad legislative powers and the power to place in other state branches functionaries who were unconditionally loyal. That, plus the deeply-rooted political culture of totalitarianism cultivated during the previous administrations, meant that all unloading of state goods after 1990 was done at the will of the government, as if they were the private property of the President and her functionaries. A large quantity of goods were disposed of in this period by presidential decrees that simply said: "hand over," or "change," or "lease," as if Violeta Chamorro personally owned them.
In the process of privatizing public goods, the government did not even enjoy correct council from its own lawyers. Given the absence of institutional controls in the Constitution, these lawyers, instead of clarifying that no functionary has more attributions than those stated by the law, fed the discretional abuses with the advice that anything not expressly prohibited is permitted.
But this principle only applies to individual citizens: what the law does not prohibit, it allows me to do. For state officials the principle is that no official has more attributes than those given by the Constitution and the laws. And if in no part of the Constitution or the laws does it appear how to dispose of state goods, no one can touch them.
All of this led to the creation of a privatization process leaning to corruption and trafficking in favors, methods of corruption that privatizations have followed in other Latin American countries and which led to the illicit enrichment of functionaries.
There were also negotiated agreements between the government and some social sectors aimed at replacing the law, generating acts that today are invoked as rights by the so-called workers' enterprises and that make the already conflictive property problem even more complex. The reality is that those agreements—in which the percentage of shares from the enterprises for workers was decided—did not get encoded in laws that guarantee workers' property and allow these workers to defend their rights. The fragility of those accords makes it easy to take away the workers' shares...because of the absence of a law.
The circumstances the legislative assembly was going through during the Violeta Chamorro government, the contradictions among those who had won—between those who made use of the government and those who felt displaced from it—as well as the contradictions among the FSLN representatives—which ended in a division—forced us to think that the solution to all these contradictions lay in reforming the 1987 Constitution.
With the reforms that a group of us fought to pass, we wanted, if timidly, to do what Costa Rica did in 1948, which shows that we are lagging half a century behind in terms of institutional development. These constitutional reforms were important, among other reasons because they are the only reforms in Nicaragua's history made from the bottom up and not the top down. All previous constitutional reforms were made through deals among top party politicians. All of them. They were never aimed at developing the country institutionally.
The constitutional reforms were and remain today the first serious and coherent effort to plant the seeds of new institutions in the country, institutions that facilitate greater controls on the branches of the state and close the possibilities of secular abuse that accumulates faculties in a single person or group of people in government. The reforms put significant limits on corruption, though not all possible limits have been exhausted with them, and many of the reforms are not yet in force. These reforms are perhaps the only rampart that in these moments is protecting some spaces from the cancer of corruption.
The constitutional reforms went into legal effect on July 4, 1995, but only became truly valid on January 10, 1997 given the ferocious opposition of the previous executive branch and of its allies in the other branches of the state. This opposition was not because the only goal of the reforms—or so they wanted people to believe—was to bar Antonio Lacayo's presidential aspirations. What motivated the opposition was that the executive would have its legislating faculties taken away, would no longer be able to choose the Supreme Court justices or the Comptroller on its own, and would no longer have the ability to organize the state, the ministries and the autonomous institutes arbitrarily. These were the real reasons why there was such ferocious opposition to the reforms.
There was also a struggle by the executive, behind closed doors, to keep the constitutional reforms from including dispositions for effective control over state goods. Without this constitutional control, we decided to make a special law with the same objective. Thus began a long fight to pass Law 169, which is what the Comptroller General of the Republic currently uses every time he impugns the decisions or desires of functionaries who attempt to arbitrarily dispose of state goods.
Law 169 arose because the state was desperate to privatize telecommunications by "creating" a stock company and making high-level functionaries into shareholders. When the plan was almost ready, they realized that they could only sell TELCOR by law. This important law didn't appear until the privatization of public utilities got underway. By then, all other enterprises had been privatized arbitrarily.
The honesty that encouraged the majorities who brought down the dynastic government in 1979 was not lost in the corruption of the minorities who led the transition of 1990. Some fundamental institutions have remained and can be strengthened to form a truly democratic state.
The mass media, which faced the Manichaeism and the division of the journalist sector during the 1980s, was in no condition to be critical of the institutional abandon that led to new corruption in those years. In 1990 they began recovering a strength similar to what they had before 1979, in their opposition to the Somocista corruption. That recovery faced many limitations, among them persistent confusion between what was social benefit and what was illicit enrichment during the government that left office in April 1990, and the economic coercion that the current government is employing by politically assigning state publicity.
The government elected in October 1996 has the same limitations as the previous government on the exercise of authoritarian power and the engendering of structural corruption. Like the 1990 government, this one has no military, civil or political apparatus that allows it to make corruption structural. In fact, it has more limits. Since this government is restoring individuals and styles from Somocismo, it has to be cautious with the remains of power still in the hands of those who led the destruction of the Somocista regime. It is also hobbled by the constitutional reforms that, even though not yet fully applied, define a state that cannot be totally designed for corruption and make it very hard get around the controls that impede other forms of public venality. The presidency, ministries and autonomous institutes can no longer legislate, there is no longer an ad-hoc Comptroller, the dispositions of Law 169 cannot be ignored in transferring state goods, and the Law of Administrative Contracts cannot be easily violated.
Despite all of these controls, however, the current government has given indications that it is unwilling to rectify the traditional arbitrariness of public administration. It has shown the same inclination as all previous governments to underestimate the law as rector of national life, maintaining almost all its institutions outside the law. For example, the Law of State Organization has still not been approved, which makes all ministry actions absolutely illegal. If someone decides to impugn all of these actions, their illegality could be demonstrated.
The current government has ignored constitutional prohibitions on nepotism in governmental structures and it hasn't even crossed their minds to approve the law regulating the Constitution's anti-nepotism norms. This government has also not wanted to accept the counterweight of a Human Rights Prosecutor headed by someone outside of the executive branch, as is now common in many countries. Since the doctrine that inspires the Prosecutor's office demands that those who safeguard the population's human rights have no connection to government and the current government can't openly reject this doctrine, it has simply opted nor to choose a prosecutor.
Perhaps the most serious aspect of the current government's facilitating of different forms of corruption—and even more serious in terms of turning back the precarious democratic institutional development that now exists in Nicaragua—is its marked tendency to convert public administration into a party dowry. It has even tried to do this with the National Assembly, which the executive branch conceives of as one more ministry. Any healthy tendency to professionalize government structures and create a service mentality in political posts is annulled by the obsolete and damaging practice of grabbing all public posts for the party, which leaves the door wide open to all sorts of corruption.
The signs of corruption that this government is giving are now limited to the space where controls are still missing and where the lack of institutionality allows corruption to operate. But even at that, it is very difficult to structuralize and generalize that corruption, which has been almost totally reduced to influence peddling.
Influence peddling is not yet a crime in the Nicaraguan penal code. Nor does the crime of illicit enrichment exist. Nor are there ways to establish the presumption of guilt of a functionary who appears with a lot more capital than was declared at the beginning of his or her term and whose source cannot be explained. There is still no legal follow-up for this kind of enrichment.
The fight against corruption and in support of a democratic institutionality can and should become a banner of the youth. Our young people, capable of generous efforts, do not currently have a clear goal and are asking themselves what cause they can support. The goals that motivated the fight against the dictatorship in the 1960s and 70s are gone, as are those that accompanied the revolutionary tasks of the 1980s. Today's youths are currently accumulating knowledge to later work in a society built without their participation. In this discouraging context, young people can find a goal if they become militants in the struggle for institutionality and democracy, which are the paths on which to initiate Nicaragua's economic development once and for all. Afterwards, they will have to find other goals so that the wealth that is generated can be distributed with social justice.
There is a crusade to which militants can be called. There must be a fight for a national accord that corrals corruption. By putting a fence around it we can initiate our development. But Nicaragua still has a long way to go to contain corruption, prevent its growth and consolidate a democratic state.
The Comptroller General of the Republic, the Human Rights Prosecutor and the representative of the Public Ministry—a new institution that today is reduced to being the state notary—should be absolutely disconnected from governments in office, and instead linked to civil society organizations as established in the Constitution.
The Comptroller General's office is now acting independently. The constitutional reforms gave it new and better functions which should be expanded and regulated via a new ordinary law. It should be given faculties that allow it to investigate and prove illicit enrichment of functionaries, establishing the responsibilities that can be derived from any irregularity in this area. The Comptroller should have an adequate percentage of state income to be able to fulfill this task.
A representative of the Public Ministry, elected perhaps at the same time as the municipal mayors and councilors and the community representatives to the administration of justice, is another way to make real the autonomous participation of organized civil society. The full vigor of the faculties that the law gives the Human Rights Prosecutor would complete a strong control network against the abuses that have always characterized power in Nicaragua.
Penal legislation needs to be modified, typifying the most common crimes that characterize corruption: illicit enrichment and influence peddling. Processing should simultaneously be made more expeditious, with severe penalties for abuses involving state goods, whether by functionaries or accomplices in civil society. The burden of proof must be inverted when inexplicable growth in wealth appears in declarations of functionaries' goods. When this happens, it must be the functionaries who demonstrate that this increase comes from clear and concrete activities not linked to the position they have in government.
Conflict of interest incompatibilities should be established for the naming of administrative officials, to prevent people who exercise private activities related to certain ministerial or other key economic posts from accepting those positions. We must eradicate the custom of clan and class from our past governments, which have almost always put the fox in charge of the hen house. Respect for and solidifying of norms that regulate administrative careers are an excellent starting point for a clean-up of this sort.
There was no way to reform the judicial branch in 1995, because of the battle around the constitutional reforms. Since its current structure is the most vertical of all the state branches, it must go through radical changes. It must establish the National Council of Justice as a source of appointments. Combined with the strict fulfillment of the judicial career, this council should guarantee the autonomy of judges and magistrates. This would end the feuds created because of the autocratic nature of today's Supreme Court, which names appeals court magistrates and all judges, thus removing all autonomy and turning them into agents who work under its influence.
To improve the functioning of the legislative branch, the struggle should focus on establishing in both the Constitution and the Electoral Law individual candidacies rather than slates for municipal councilors and National Assembly representatives, so as to elect people who respond to their electors and not their parties, which would be a fundamental basis for legislative branch sovereignty.
Citizens should be able to vote for candidates directly. This would to some degree diminish the parties' power, because voting would be for individuals and not for parties. This would prevent the election of representatives who are not necessarily known or who may have been put at the head of the slate for reasons other than quality. It would also accentuate the connection between the elected and the electors, who could make demands more directly and withdraw support when it ceases being merited. The system of voting by party slates is obsolete, and leads to the strengthening of large and corrupt parties.
Another objective is to allow popular petition candidates to run for all positions. We managed to expand such candidates [previously limited to autonomous governments in the Atlantic Coast] in the last Assembly, but only to the position of mayors and councilors. At a time when political parties have deteriorated and there is a loss of confidence in them and their leaders, but there is still confidence in natural leaders, society should propose popular petition candidates for all posts, even the Presidency of the Republic.
In the major cities of the country—especially Managua, which like all third world capitals centralizes a great part of the country's activity—the new constitutional disposition that establishes that councilors cannot also hold administrative posts in the municipal government should not be violated. Not only is it an aberration for municipal councilors to be employees of the mayor, but we have also had a bitter experience watching huge fortunes being born when councilors abandon their functions and even their ideologies to serve mayors.
All of these goals could give content to an authentic national accord. They should be proposed as the fruit of the pressure of organized society or as a political platform that society can support, as people become militants of Nicaragua's struggle for democratic institutionality. It is a just and urgent cause to engage in a crusade against corruption, which people sometimes confuse with the exercise of politics and, worse yet, consider an evil endemic to democracy.
At stake today, in the coming months and in these next years is Nicaragua's destiny. Will it emerge in the new millennium as a healthy state or as a recurringly corrupt and falsely democratic state?