From Justitieombudsman to Defensor del Pueblo: Human Rights Ombudsmen in Latin America Moreno (2020)
Abstract
The main function of the ombudsman office, when it was created in Sweden in 18091, was to oversee state administration. Across Latin America, however, the ombudsman conducts oversight, upholds human rights protections, performs anti-corruption tasks, and is an advocate for environmental protection. They may go by different titles, sometimes referred to as the Defensor del Pueblo or Procurador de Derechos Humanos, but they are all examples of a ‘hybrid’ office, unique to Latin America (Reif 2004; Reif 2011; UNDP 2010), that carries out multiple mandates beyond government accountability. The ability to act as a ‘check’ on elected and unelected officials is essential to democratic governance, especially in a region where ‘checks and balances’ have been lacking (see O’Donnell 1999). Anti-corruption tasks are also important for building societies that follow the rule of law (see O’Donnell 1999). Acting as effective and neutral arbiters of human rights complaints is another critical component of creating a tolerant democratic civic culture (see Almond and Verba 1963; Haynor 2002). Therefore, it stands to reason that an effective ombudsman is an important institution for the development of any democratic state.
This book provides an in-depth examination of the Defensor del Pueblo across Latin America that focuses on its ability to ‘speak truth to power’ (independence) even when it challenges the status quo and its representatives. This research also explores regional variations in ombudsman effectiveness; in other words, how successfully is the office reaching out to the public and has it had a measurable impact on the citizenry? In order to make sense of the Defensor’s role in modern democratic systems, I employ a principal-agent model of behavior and delegation. After all, these offices were created, appointed, dismissed by elected officials (presidents and elected representatives). What is more, ombudsmen are dependent on elected politicians and international donor agencies that fund the Defensor’s annual budget. Since the Defensor del pueblo is effectively an agent of both elected officials and international interests her independence and effectiveness is an inherently political question.
This book borrows from several theoretical traditions, including contributions to the literature in comparative politics and comparative public administration and policy, to explore conditions under which elected branches prefer deferential postures by oversight agencies (see Baron and Ferejohn 1989; Eisner and Meier 1990; Wood and Waterman 1994). Consistent with the extant literature on interbranch relations and delegation, I begin with a simple principal-agent model in which the Defensor del pueblo acts as agent to elected officials and, to a lesser extent, international actors (nongovernmental organizations and state agencies). I assume that all three categories of actors (elected officials, international donors, and ombudsmen) are motivated by policy outcomes. I also assume that, even where they may agree on general social goods, their preferences for policy outcomes may diverge (with ombudsmen being interested in having greater discretion to carry out their mandates.) With these assumptions in mind, I examine how the rules of the game, in this case presidentialism, can lead to variations in independence and, ultimately, effectiveness.
In addition to examining ombudsman independence across the region, I also examine the effectiveness of the Defensor del pueblo’s outreach efforts, including their responses to citizen complaints and efforts to educate the public on human rights (including minority rights), oversight, and environmental protection. Information about caseloads and outreach activities are regularly and publicly reported as measures of effectiveness.2 I address both of those elements of effectiveness across two cases: Bolivia and Colombia. These case studies provide a unique opportunity to study the evolution of this agency and its impact across two neighboring countries that are similar in terms of the formal independence of this agency. The case studies provide a thick, case-specific narrative of the origins of the office, the struggles faced by the office, and the debates surrounding the effectiveness and independence of the Defensor del pueblo in both countries. The rationale for these two cases is simple. Bolivia represents the first country to adopt the Defensor del pueblo and Colombia is among the last. So, there is a substantial amount of learning that has taken place over time, with Colombia gaining a great deal of knowledge from the Bolivian experience. Second, the cases experienced variation in the design of the ombudsman office, as well as the key independent variables of interest (e.g. divided government, parties in government, as well as conflict and policy complexity). Finally, since these countries are both located in South America, there is some interesting spillover in terms of the kinds of debates surrounding the value of the ombudsman office over time. Initial examinations of independence and effectiveness also suggest that there is significant variation across these cases over time.
This study promises to address the gaps in two distinct but similar bodies of literature. The first body of literature, which deals exclusively with issues related to the ombudsman, is largely descriptive in nature. Most studies of this ilk are case studies of a single office, often for a limited period of time (Dodson and Jackson 2004; Dodson 2006; Jackson, Dodson, and O’Shaughnessy 1999; Pegram and Goodman 2012). While these studies offer important insights, they lack comparability and, as a result, tend to treat their subjects as rarefied and unique specimens. This results in explanations for effectiveness and independence that rely on the unique personal characteristics of the individuals heading these agencies; as such, they leave us without the ability to generalize. This study also adds to a large body of literature on democratic institutions, much of which employs principal agent theory to understand interbranch relations and delegation has examined legislative, executive, and increasingly judicial interactions (Moreno, Shugart, and Crisp 2003; Moreno 2012). However, this literature has not explicitly studied how elected officials and oversight agencies, like the ombudsman, interact or why. To fill in that gap, I turn to an established literature in comparative public administration and policy and judicial institutions that attempt to explain the behavior of unelected organs of the government, including their independence and effectiveness.
This examination of the Defensor del pueblo promises to be the first systematic effort to examine this office across the entire region while still examining critical case studies. Second, this manuscript would add to the growing literature on agencies of democratic accountability in the region (Chavez 2004; Helmke 2002; Larkin 1998; Navia and Rios-Figeroa 2005; ODonnell 1999; Plattner and Schedler 1999; Uggla 2004). What is more, the effort to explore causal explanations for independence and effectiveness for ombudsmen promises to shed light on the interactions of elected officials and oversight agencies in an informative and meaningful way.