( Spanish) – The Plenary Chamber of the National Electoral Council of Colombia (CNE) approved on October 8 to open an investigation and file charges against the president of Colombia Gustavo Petro and three other individuals for alleged irregularities in the financing of electoral campaigns. In response to this action, Petro expressed that “the coup d’état has begun” and questioned the competence of that body to investigate it. Does the CNE have the authority to carry out that investigation? And what is the scope if there is a sanction?
According to the concept of the Council of State, the CNE is empowered to carry out an administrative investigation. However, the scope of his authority in relation to the president’s jurisdiction is an issue that generates discussion in public opinion.
The CNE reported that omissions were found in the reports of contributions and payments from the campaign that brought the current president to power. This includes payments to electoral witnesses, which suggests possible and serious irregularities in said campaign, in a statement in which he explained his decision.
The investigation covers both the first round, held on May 29, 2022, and the runoff, on June 19 of the same year.
“In this order, the candidate, campaign manager, treasurer and auditors are accused of allegedly violating the spending limit in the first round campaign,” explained the CNE statement.
In May 2024, the Constitutional Court issued car 916 which establishes that the CNE is the entity responsible for investigating possible violations of electoral spending limits in the campaign of the president of Colombia Gustavo Petro and in other elections. That decision was made after analyze a case of a conflict of powers “arised between the Twenty-first Administrative Court of the Circuit of Bogotá, Second Section and the Twenty-ninth Civil Court of the Circuit of the same city.”
The document explains that the conflict was triggered by a popular action presented in 2023 by the Military, Police, Friends, Honor, Together for Colombia Corporation (Mipofaamcol), a non-governmental organization of ex-military and ex-police officers in the country, which sought to determine through a court ruling that Petro’s campaign had exceeded the limits established for financing in his quest for the presidency.
For this reason, the Court, in this case headed by Judge Juan Carlos Cortés González, analyzed the aspects related to the conflict presented and determined that the special framework of supervision and authority of the organization to identify possible violations of the campaign financing limits presidential elections is recorded in article 265 of the Constitution.
This article grants the CNE the power to regulate, inspect, monitor and control “all electoral activity of political parties and movements, significant groups of citizens, their legal representatives, directors and candidates, guaranteeing compliance with the principles and duties that correspond to them” and that “will enjoy budgetary and administrative autonomy.”
For its part, a resolution from August of this year of the Council of Statethe highest judge of the public administration, agrees that the CNE is the appropriate body to carry out administrative investigations about a possible violation of the financing regulations of the last presidential campaign. Furthermore, it established that “it is the responsibility of the Congress of the Republic, through the Commission of Accusations, to advance the eventual process to sanction the head of State with loss of office, in the event that the findings of the electoral authority give rise to the development of an action of that nature.”
In this context, the article 21 of Statutory Law 996 of 2005 ‘Campaign monitoring and sanctions’which establishes the rules for the election of the President of the Republic, grants the CNE the ability to carry out audits and reviews to ensure compliance with the provisions on campaign financing. And, if irregularities in financing are verified, “impose the corresponding sanction with application of the procedure provided for in the current regulations that regulate said Council.”
In this regard, the Government spoke out, pointing out that “the CNE mixed criteria that must be clearly differentiated: one thing is its competence to investigate the campaign and another is excessively attributing the function of investigating to a constitutional person such as the president,” highlighting that the organization’s decision is contrary to constitutional jurisprudence “which shows the loss of objectivity and impartiality on the part of the CNE magistrates.”
Regarding the annulment request presented by President Gustavo Petro’s lawyer a few days ago, the Consultation and Civil Service Chamber of the Council of State rejected the procedure on October 7, considering it inadmissible. This request challenged the decision of August 6, 2024 that resolved a conflict of powers between the National Electoral Council (CNE) and the Legal Commission of Investigation and Accusations of the Chamber. The conflict arose as a result of alleged irregularities in the financing and presentation of income and expense reports of the 2022 interparty consultation and presidential campaigns of the “Historical Pact Coalition”, where Petro served as a candidate.
“The Chamber held that the decisions that resolve conflicts of jurisdiction are final and mandatory, against which no appeal is admissible. Likewise, he recalled that he does not exercise jurisdictional functions, which is why he declared the requested precautionary measure inadmissible,” he explained. the statement.
Héctor Alfonso Carvajal, Petro’s defense lawyer in the investigation, argues that the CNE has exceeded the legal time to continue with the process. Carvajal explained in a interview on CM& news on Wednesday that, according to the law, the investigation should have been initiated within 30 days after the election and that, in addition, the campaign had already been audited and approved. “The CNE opens an investigation where they are the ones involved, because they were the ones who supposedly should have done, as they did, an audit of the accounts and approved them,” said the lawyer, with which the CNE would then have to “sue his own act.” Carvajal maintains that if there were irregularities, it would be the Comptroller’s Office or the Commission of Accusations that should investigate, not the CNE.
In that sense, José Gregorio Hernández, former president of the Constitutional Court, stated in X that the constitutional jurisdiction that covers the President of the Republic “during his term implies the exclusivity of Congress to investigate, judge, condemn or acquit him.” And he adds that “if another entity assumes that jurisdiction, it violates the Constitution and violates the right to due process.” Also pointed out that by its nature, a constitutional jurisdiction is exclusive, integral, full” and acts as a guarantee establishing a right that has priority “Jurisdiction and competence are held only by the body or court that the Constitution indicates. “It excludes anyone else.”
On the other hand, Rodrigo Uprimny, researcher at the center for legal studies Justicemaintains that “if the CNE concludes that the electoral limits were violated (which is unlikely since it requires the favorable vote of six of its nine members), then it may impose pecuniary sanctions on Petro, but it will not be able to touch his presidential term.” In that sense, says Uprimny, there is consensus between the courts and experts. “The only thing the CNE could do is present the complaint to the Commission of Accusations, since it is exclusively up to Congress to evaluate Petro’s possible guilt.”
If the process advances, the CNE Plenary Chamber could only impose economic sanctions against the campaign representatives. If there is merit for a criminal investigation, the process leaves the CNE: copies would be sent to the Prosecutor’s Office. And as for President Gustavo Petro, only the House Impeachment Commission can investigate him.
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