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The national security blindspot in Colombia's FOI law

A new transparancy law guarantees Colombian citizens greater access to information on public spending, but corruption in the defence sector and links to organised crime still remain obscured, and matters of 'national security' are exempt altogether.  

Emma Kerr
25 June 2014

Earlier this year Colombia’s President Juan Manuel Santos signed a Freedom of Information Law (FOI) aiming to tackle corruption in the public sector and ensure transparency in procurement. The Transparency and Access to Information Law is meant to ensure that “citizens now do not have to approach the government to ask for information but rather the state will be obliged to provide it,” as Santos outlined, when he signed the law earlier this year. But the law exempts an important sector: defence.

According to the new law, the onus now rests on government bodies, political parties, personas naturales (individuals with a corporate identity) and corporate entities contracted by public bodies to publish data about public expenditure. Citizens and NGOs will be empowered to track government expenditure and hold the state accountable for spending. 

On the face of it, a law signed in the presidential palace to improve transparency in public procurement is far removed from the gritty battle for control on the ground between warring organised crime factions. But the battle with organised crime in the country, and the region as a whole, will be affected by how transparent and open the government is—and the defence sector in particular. 

The law comes in the wake of the scandal that rocked Colombia’s defence sector earlier this year, when a corrupt procurement deal in the Ministry of Defence (MOD) brought the army’s history of extra-judicial killings and abuse of power to the fore. The scandals, which also included alleged illegal wiretapping, led to the biggest purge of the military since 2008 and the dismissal of armed forces chief General Leonardo Barrero.  

The Transparency and Access to Information law could have important implications for the country’s battle with organised crime and drugs. Organised crime groups across the country, such as the powerful Urabeños and other BACRIM, have steadily gained power with the side-lining of the FARC, and there are fears that the huge efforts made in the peace deals with the FARC will be countered by a power struggle between these groups for the FARC’s territory and connections. Santos has recently stepped up his rhetoric against the Urabeños in particular. 

In Latin America, as in other regions of the world, corruption in the defence sector can fuel the narcotics trade and the strength of organised crime groups in a number of ways, including by providing access to illicit funds and weaponry. Corrupt defence personnel, often engaged in the war against drugs and crime, may be complicit in organised criminal activity themselves. For example, the risk of involvement in organised crime increases in countries where personnel are paid less than a living wage because superiors may skim off the top of their salary. When defence budgets and spending lack transparency, funds have made their way into the pockets of the very people they were intended to stop. When assets like weaponry are not disposed of in a transparent manner, these too can end up in the hands of violent organised criminals.

The 2013 Government Defence Anti-Corruption Index measures levels of corruption risk across 82 countries, including Colombia, Argentina, Brazil, Chile, Mexico and Venezuela. One question in the index assesses the penetration of organised crime into the armed forces and defence ministries. In Argentina and Brazil, the Index found very little evidence suggesting involvement of defence personnel in criminal activity. In other countries in the region, however, much work remains to be done. 

In Colombia, for example, the head of DAS, Colombia’s former intelligence service, was found guilty of collusion with paramilitary groups. Human Rights Watch denounced the involvement of paramilitary groups and criminal bands in politics and the defence sector in particular. Similarly, in Mexico, the index flagged a number of high profile cases related to the penetration of organised crime in the sector, including a case of two generals who were linked to the Beltran-Leyva cartel

The report found that in nearly all Latin American countries analysed, very little policing exists to investigate corruption and organised crime within the defence services. Across the region, anti-corruption training provided to troops was found to be generally poor to non-existent, particularly in training for personnel on operations. Very little monitoring of corruption takes place of personnel in the field and provisions for whistleblowers are weak. 

The introduction of the Transparency and Access to Information Law is a positive first step in the fight against corruption in Colombia. By requiring all public bodies to publish their data on procurement, the government creates avenues through which civil society can hold politicians and civil servants to account for public spending. But disappointingly, the law does not address corruption in the defence sector and, as such, is unlikely to affect its links to organised crime. 

This is because, although the law proudly declares that it encompasses “all public entities” (Articles 5a-f), the exceptions to the law include information that could “harm public interest”, such as matters of “defence and national security” (Article 19a). This limits the remit of the law and its ability to curb corruption in the defence sector. Where governments are given the choice to exempt inconvenient information without strong oversight and justification, they far too often will. There are a complex set of needs in tackling organised crime in Colombia, and not everything can be published—of course, some information about operations and strategies against organised crime needs to be kept confidential, for a limited period of time. 

There must be laws in place, however, to limit what information can be classified and for how long, and what percentage of the budget may be kept secret. The Tshwane Principles, a set of principles devised by a group of NGOs and experts, provide guidance for governments on how to balance complex and vital security needs with the right that citizens have to access information. 

In many Latin American countries, the war against drug trafficking and organised crime has become heavily militarized, with the military increasingly playing the traditional role of the police. This is especially true in Colombia, where Plan Colombia has funded the military to take on some police functions. By bringing the military in to tackle organised crime however, dangerous links are created between individual officers and organised criminals, which heightens the risk of corruption. Particularly because the military are playing an increasingly immediate role in citizens’ lives, the need for accountability to them is even greater. 

More needs to be done by governments across Latin America if they are to turn FOI laws into a changed reality on the ground for those citizens who still face both the dangers posed by organised criminal activity, and the poverty caused by wasted funds from corruption in the defence sector. 

Firstly, governments must ensure that these laws cover the defence sector. It is reasonable to expect that governments will need to classify some information on the grounds of national defence. This should be the exception rather than the rule, however, and clear legislation should guide the classification of documents and scrutiny of these decisions. If these are in place, there is no reason that all other data relating to the defence sector should not be published openly and transparently. 

Secondly, as analysis of the index has shown, the introduction of FOI laws in public procurement is a good first step, but it is not enough to significantly lower levels of corruption risk in the defence sector alone. For this, more proactive measures are needed, which include effective monitoring and oversight of the defence sector, its personnel and its decisions. 

The good news is that progress is possible; we have seen governments ranging from Norway, to Georgia and the Occupied Palestinian Territories taking on these issues. In fact, as Confidencial Colombia revealed recently, the Colombian government is already making some positive moves in the wake of this year’s scandals by provisionally suspending any direct contracting by the Armed Forces.

Where there is political will, the Government Defence Anti-Corruption Index provides defence ministries in Latin America (and indeed, globally), with the information on corruption risks that they need to address corruption in the defence sector. Until they do so, Latin American governments cannot win the battle against organised crime.   


The next wave of the index will be published in 2015 and will cover 136 countries, including 10 from Latin America.

 

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