By Charles H. Roberts*

Colombia’s Procuraduría General de la Nación (PGN) – constitutionally barred from intervening in politics – has taken actions during the 2022 election campaign to the detriment of left-of-center candidate Gustavo Petro (Pacto Histórico), undermining its own image and casting a shadow over the second-round vote on Sunday. It has disciplined officials of other parties too, but the pattern of its actions – and inaction – reflect a clear bias against Petro.

• Last month the PGN, invoking its authorities as the Office of the Inspector General, suspended for three months the mayor of Medellín for tacitly endorsing Petro. That mayor and another were accused of violating Article 60 of the Disciplinary Code, on “breaches related to intervention in politics,” because they publicly indicated support for one of the presidential candidates. The disciplinary actions were taken with no finding of criminal liability by a court of law – a violation of Article 23 of the American Convention on Human Rights (ACHR), according to the consistent case-law of the Inter-American Court of Human Rights.
• The PGN has failed, however, to take equally decisive action when senior officials who favored Petro’s opponents in the presidential election – Federico “Fico” Gutiérrez (Coalición Equipo por Colombia) and Rodolfo Hernández (Liga de Gobernantes Anticorrupción) – made similar partisan statements. President Iván Duque, Defense Minister Diego Molano, and Army chief Gen. Eduardo Zapateiro all spoke out explicitly – and in violation of constitutional and statutory prohibitions – against positions taken by Petro and his campaign. (The Law on Electoral Guarantees of 2005 contains specific prohibitions on the President and Vice President’s activities, and the Constitution expressly prohibits members of the military and oversight agencies like the PGN “from taking part … in political controversies.”) Legal experts and civil rights activists, long concerned about PGN politicization, cite such actions as compromising its neutrality.

The failure of Procuradora General Margarita Cabello to refrain from involvement in political matters is part of a broader trend in the Duque Administration to weaken the rule of law and judicial independence. She was Minister of Justice under Duque until January 2021 and was nominated by him for her current job. Critics say she has violated the very same principle – that public servants should remain above politics – that she claims she is enforcing by suspending officials she believes cross the line. When Duque attacked Petro, she did not even reprimand him despite precedent: In the 1970 elections, then-IG Mario Aramburo chastised President Carlos Lleras Restrepo for intervening in the election debate.

• Cabello’s actions ignore decisions by the Inter-American Court of Human Rights. When then-IG Alejandro Ordóñez removed Gustavo Petro as Bogotá mayor in 2013-2014, the Court found that the action violated Petro’s political rights and those of the voters of Bogotá who had elected him by acting without “sentencing by a competent court in criminal proceedings.” The Inter-American Commission on Human Rights issued a precautionary measure that Colombia implemented, restoring Petro to office just one month after his removal. In its July 2020 final judgment in the Petro case, the Court told Colombia to modify its regime to bring it into compliance with the ACHR, and gave it until October 2021 to do so. (Colombia ratified the ACHR in 1973 and integrated it into its 1991 Constitution.) The Court, whose position is that the PGN is an administrative organ and therefore cannot exercise judicial powers, in a November 2021 resolution found Colombia out of compliance with its judgment. The government has yet to comply. 

IG Cabello’s recent actions raise serious doubts about the Procuraduría’s neutrality and has prompted renewed debate about reform and the need to protect democracy and the rule of law. In a recent interview after the latest suspensions, Gustavo Gallón, director of the Comisión Colombiana de Juristas, highlighted the need to “oversee the overseer.” Other long-time observers, such as Rodrigo Uprimny of Dejusticia, have called for shutting the office down, noting that its functions are all redundant with other oversight institutions – or, at a minimum, for it to comply with the Court’s decision. 

• Candidate Petro advocates placing the Procuraduría under the Office of the Attorney General (Fiscalía). His opponent, Rodolfo Hernández, is running on an anti-corruption platform, but he hasn’t made public remarks on the PGN’s recent actions. Given the PGN’s tilt against Petro and apparent willingness to wade into political waters, however, an Hernández presidency may well seek to harness the office to spearhead his promised anti-corruption drive. No matter who wins the election, Colombian democracy is weakened when the PGN, a unique institution with unique powers, turns its back on Colombia’s commitments to democracy and human rights. 

June 17, 2022

*Charles H. Roberts is a lawyer and translator based in Washington, D.C. He is the author of Top-down Accountability vs. Electoral Democracy: The Case of Colombia’s Inspector General (and in Spanish), published by the Accountability Research Center in March 2021.