A primer on Colombian institutions
Before starting to talk about current politics and the upcoming elections, it may be wise to give some explanations about Colombia’s political institutions and the current electoral system. This is a purely descriptive summary of the main political institutions (at the national level) and their intended role under the law, and doesn’t make any normative judgements about how these institutions operate — that’s a whole other topic, that can be the subject of later discussion…
Constitutional framework
The current constitution of Colombia is the Constitution of 1991 (Constitución Política de Colombia 1991). It is Colombia’s eighth constitution — before it came the constitutions of 1821 (Gran Colombia, ‘Constitution of Cúcuta’), 1832 (New Granada), 1843 (New Granada), 1853 (New Granada), 1858 (Granadine Confederation), 1863 (United States of Colombia, ‘Constitution of Rionegro’) and 1886 (Republic of Colombia).
The 1991 constitution was adopted by a constituent assembly and is the first Colombian constitution which was not purely the product of the political elites.
The constitution defines the country as an Estado social de derecho, a legal concept whose English translations all seem clunky (social State under the rule of law). Similar to the definition of Germany as a “democratic and social federal State” and Spain as a “social and democratic State, subject to the rule of law”, the concept draws from the European ideas of the ‘social State’ and the German concept of Rechtsstaat.
The 1991 constitution brought several fundamental changes to the conception of the Colombian State — including, but not limited to, the recognition of Colombia’s ethnic and cultural diversity, decentralization (defined as “decentralized unitary republic”), popular sovereignty, separation of Church and State, broad protections of fundamental rights, new social and economic rights, mechanisms for the protection of these rights and semi-direct democracy (on paper).
Institutional setting
The executive: President and Vice President
Colombia is a presidential republic. The President of the Republic (Presidente de la República) is the head of state, head of government and supreme administrative authority (and commander-in-chief of the armed forces). The President is directly elected for a single, non-renewable four-year term in a two round election, with an absolute majority required to win in the first round. The President must be a native-born citizen over the age of 30.
The Vice President (Vicepresidente de la República) is elected simultaneously on a ticket with the winning presidential candidate, and the VP’s only constitutional duty is to replace the president in cases of temporary or permanent vacancies, although the President may appoint the VP to any office in the executive branch or entrust him/her with special assignments and responsibilities. A sitting Vice President who wishes to run for President must resign from office at least one year before the election.
A constant issue in Latin American politics, term limits have been a hot topic in Colombia as well. The 1991 constitution originally limited presidents to a single, non-renewable term, thereby banning both consecutive and non-consecutive reelection. In 2004, the constitution was amended to allow a single reelection, setting a two-term limit. In 2010, a controversial attempt to hold a citizen-initiated referendum to allow a second reelection was ruled unconstitutional. In 2015, a constitutional reform abolished reelection, returning to the original text of the 1991 constitution. Furthermore, any future modifications of term limits would now require either a constituent assembly or a referendum.
According to the formal letter of the constitution, the executive’s key powers include foreign relations, national defence, public order, the management of public administration, the oversight of public services, fiscal and economic policy.
The President appoints and dismisses cabinet ministers, diplomats, directors of administrative departments and other heads of public institutions. In addition to these direct appointments, the President nominates three candidates for Attorney General, one of the three candidates for Inspector General and three of the nine magistrates of the Constitutional Court. The President also appoints five of the seven members of the board of directors of the Bank of the Republic (central bank), in addition to the finance minister and a general director elected by the other members.
Through the government, the executive branch has significant influence over lawmaking — ministers can directly introduce pieces of legislation, and in practice it often intervenes throughout the legislative process to ensure approval of the government’s agenda. The President may request the urgent discussion (trámite de urgencia) of any bill, in which case the respective house of Congress must make a decision within 30 days. The government also has the power to convene extraordinary sessions of Congress, often to ensure that an important piece of legislation is passed.
Within six months of taking office, the incoming administrations must present to Congress a national development plan (PND) and investment plan — essentially the government’s policy agenda and objectives for the medium and long-term. The PND and investment plan are adopted by Congress, although the government may adopt the investment plan by decree if it is not adopted by Congress within three months.
Any piece of legislation passed by Congress must be sanctioned (approved) by the President who has between six and twenty days (depending on its length) to object to it, either partially or in its entirety. If objected to, a bill is automatically returned to Congress, which can override the presidential objection with the support of an absolute majority of members in both houses, except if the bill is objected to on grounds of unconstitutionality, in which case the bill — if both houses insist — is sent to the Constitutional Court, which rules on the matter within six days.
The 1991 constitution introduced, at least formally, limits on executive prerogatives, most notably over the President’s power to declare states of exception. The power to declare states of exception (for war, internal disturbances or socioeconomic and environmental emergencies) and rule by decree is limited in time and scope, and subject to judicial review.
The legislative: Congress
The Colombian Congress is a bicameral legislature made up of the Senate (Senado) and the House of Representatives (Cámara de Representantes), both of which are elected every four years in March, before the presidential election.
The Senate currently has 108 seats (see table). 100 members are elected in a single national constituency (which includes expatriate voters), and two are elected in a special national constituency for indigenous communities. Since the 2015 constitutional reform, the runner-up in the last presidential election is automatically entitled to a seat in the Senate. Finally, as part of the November 2016 peace agreement with the former FARC guerilla, the FARC’s political party (now known as Comunes) is automatically entitled to at least five seats for two terms (2018–2022, 2022–2026), regardless of their results. The minimum age of candidacy is 30.
The House of Representatives elected in March 2022 will have 187 seats (see table). 161 members are elected in 33 territorial constituencies which correspond to Colombia’s 32 departments and Bogotá (capital district). Each department returns at least two members, with additional ones for every 365,000 inhabitants (or fraction greater than 182,500 above the first 365,000). The district magnitude varies between 2 and 18, with twelve departments having two seats and three having more than 10 seats. The minimum age of candidacy is 25.
Three members are elected in two special minority constituencies, one for Afro-Colombians (2 seats) and one for indigenous communities (1 seat). In 2015, a special seat for the Raizal community of San Andrés and Providencia was created, but it has not yet been implemented through secondary legislation so it is ‘vacant’.
Legally recognized political parties and movements may not run candidates for these seats. Candidates for the indigenous constituencies must have held a position of traditional authority in their community or have been leader of an indigenous organization, while candidates for the Afro constituency must be “members of the respective community” and endorsed by an Afro-Colombian ‘community council’ registered with the interior ministry.
How these minority constituencies actually play out in reality is another question, better kept for a later date…
The international constituency, elected by Colombian expatriates, returns one member. Since the 2015 constitutional reform, the runner-up’s running mate in the previous presidential election is automatically entitled to a seat. Finally, as part of the peace agreement, the FARC’s political party is automatically entitled to at least five seats for two terms (2018–2022, 2022–2026), regardless of their results.
For the first time, 16 additional representatives will be elected in March 2022 in 16 special transitional constituencies for peace (Circunscripciones Transitorias Especiales de Paz, CTEP). These special constituencies include the rural areas of 167 municipalities in Colombia, in regions which were heavily affected by the armed conflict.
These constituencies are set aside for victims of the armed conflict and political parties may not run for these seats. Only victims’ organizations, social organizations, peasants’ organizations and ‘significant groups of citizens’ may run candidates, as well as Afro-Colombian community councils (consejos comunitarios) and legally recognized indigenous authorities and resguardos when the constituencies overlap with their territories. There are other restrictive candidacy requirements, which notably excludes anyone who ran for any office for a political party in the last five years.
In each constituency, there will be open lists with two candidates each (man and woman), and the winner will be the candidate with the most votes from the winning list.
The CTEP were mandated by the 2016 peace agreement, and were supposed to be first elected in 2018, and again in 2022. However, in November 2017, the constitutional amendment that’d have created them was declared to have been rejected in the Senate, but controversy ensued over whether it had really been rejected because of differing definitions of ‘absolute majority’. Like most other controversies in Colombian politics, it became an endless legal saga, which was finally resolved when Constitutional Court ruled in May 2021 that the amendment had indeed been adopted by Congress and ordered it to be promulgated (the government reluctantly complied).
For more information about CTEP, refer to the constitutional amendment creating them (Acto Legislativo 02 de 2021) or this document from the MOE.
Both houses are equal in the regular legislative process, and bills may originate in either house with two exceptions (revenue bills in the House, international relations bills in the Senate). As in other countries, legislation must be passed in identical terms by both houses. The constitution and the law has further rules, procedures and majority requirements for passing organic laws, statutory laws and constitutional amendments (known as actos legislativos, literally ‘legislative acts’).
Both houses have exclusive powers, which, on balance, make the Senate superior in the formal constitutional hierarchy. The Senate, among other things, elects the magistrates of the Constitutional Court and the Inspector General, approves the resignations of the President and Vice President, allows the transit of foreign troops and authorizes declarations of war. The House’s exclusive powers are of lesser importance, although it begins and votes on impeachment proceedings against senior public officials including the President and the judges of the three highest courts (the trial is held in the Senate, although its conviction powers are limited).
There are two ordinary sessions per legislative year — the first session is between July 20 and December 16, and the second is between March 16 and June 20. The first session of each new legislative year, on July 20, is opened by the President. Unlike in many countries, new presiding officers are elected every year — so during the full congressional term each house will have four presidents.
In political culture, the Senate is hierarchically superior and more prestigious, with the House being a stepping stone to the Senate in the typical career path. Senators, in part because because they are elected in a single national constituency, are far more well-known and receive the bulk of media coverage and attention, while few representatives get national attention, and those who are obviously on their way to higher places. Senatorial candidates usually unofficially run with one or more candidates for the House as a fórmula or ‘ticket’ — a way of coordinating or managing vote distribution in a competitive preferential vote system. The fórmulas also show that, despite the national constituency, many senators have regionally-concentrated bases of support.
The judiciary: Highest courts
The highest courts in Colombia are the Constitutional Court, the Supreme Court of Justice and the Council of State.
All magistrates in the highest courts must be native-born citizens and lawyers with fifteen years experience in law (in the judicial branch or public ministry, or in academia). All magistrates serve non-renewable eight-year terms. The Supreme Court and the Council of State elect their own members from lists of ten nominees selected by the Superior Council of the Judiciary (Consejo Superior de la Judicatura) following a public nominations process.
The Constitutional Court (Corte Constitucional), created by the 1991 constitution, safeguards the integrity and supremacy of the constitution. It has nine magistrates elected by the Senate to individual eight-year terms, from lists of three names (ternas) presented by the President, the Supreme Court and the Council of State (each therefore nominates a third of the court).
The court decides on the constitutionality of laws, (certain) decrees, international treaties, and constitutional amendments, as well as the convening of referendums, plebiscites, popular consultations or a constituent assembly. In some cases, like for constitutional amendments, it may only rule based on procedural grounds rather than content — although the court has, since 2003, adopted a broad meaning of this with its principle of ‘constitutional substitution’.
Any citizen may intervene to challenge or defend a legal norm. Legal challenges on procedural grounds lapse after one year. Normally, the Court has 60 days to decide.
The Supreme Court of Justice (Corte Suprema de Justicia, CSJ) is the supreme court of cassation in the ‘ordinary jurisdiction’ — every not falling under constitutional or administrative law. It is currently made up of 23 magistrates, meeting as a full chamber and subdivided into three specialized cassation chambers: civil and agrarian, labour and criminal. The Supreme Court is also responsible for investigating and judging members of Congress, as well as judging the President and other senior public officials (aforados) including other magistrates, the Vice President, cabinet ministers and the attorney general. Since 2018, aforados are guaranteed the right to appeal (doble instancia), which required the creation of a special first instance chamber.
The Council of State (Consejo de Estado) is the supreme administrative court. It is made up of 31 councillors or magistrates, meeting as a full chamber and subdivided into administrative litigation chamber and a consultation chamber. The Council of State also acts as the supreme consultative body for the government in administrative matters (its opinion must be heard in specific cases) and hears election disputes.
The constitution allows for the creation of other special jurisdictions. This currently includes the Special Jurisdiction for Peace (Jurisdicción Especial para la Paz, JEP), the transitional justice mechanism created by the 2016 peace agreement.
The Fiscalía General de la Nación is the Attorney General’s office, responsible for investigating and prosecuting crimes. The Attorney General is elected by the Senate for a non-renewable four-year term from of list of three nominees submitted by the President.
Control bodies
The control bodies or control organisms (órganos de control) are (theoretically) arms-length independent bodies which oversee public accounts, fiscal management, the behaviour of public officials, compliance with the constitution and respect for human rights. The control bodies are the Public Ministry (Ministerio Público), led by the Inspector General (Procurador General), and the Comptroller General (Contraloría General).
The Inspector General (Procurador General, the entity is known as the Procuraduría General) is elected by the Senate for a non-renewable four-year term from a list of nominees submitted by the President, the Supreme Court and the Council of State. The Inspector General has broad powers which include protecting human rights, defending societal and collective interests, and ensuring compliance with the constitution, laws and judicial decisions.
However, the Inspector General’s most important power is overseeing the conduct of public officeholders, including elected officials, with the disciplinary power to initiate investigations and impose the appropriate sanctions, including removing and disqualifying any public officials from office for ‘grave’ offences.
In 2020, the Inter-American Court of Human Rights ruled that the Procuraduría’s power to remove elected officials from office violated article 23 of the American Convention on Human Rights (on political rights), as elected officials may only be dismissed from office following a criminal conviction by a judge. Colombia’s response was based on an ‘evolutionary’ interpretation of the IACHR’s ruling, and has ended up increasing the Procuraduría’s powers. A law adopted in 2021 now gives the Procuraduría jurisdictional authority, creating a second instance (appeals) procedure with a new disciplinary trials chamber and guarantees for the accused and the possibility of review by the Council of State. Many argue that the reforms introduced still doesn’t comply with the IACHR ruling.
The Ombudsman’s office (Defensoría del Pueblo), responsible for promoting and protecting human rights, is part of but autonomous from the Public Ministry. The Ombudsman is elected by the House of Representative for a four-year term from a list submitted by the President.
The Comptroller General’s office (Contraloría) oversees the fiscal management of the public administration and all those managing public funds. At the start of its term, Congress elects the Comptroller for a four-year term from nominees selected in a public competition. A reform in 2019 significantly expanded the Contraloría’s powers, giving it authority for exceptional preventive and concomitant fiscal control (instead of just post factum) and allowing it to fine or suspend civil servants and public officials from office.
The electoral system
Unlike in many Latin American countries (or in the United States), presidential and congressional elections are not held on the same day — congressional elections are held before, in March, while the first round of the presidential election is held in late May.
The President is elected in a two-round election, with the second round held three weeks later. The two-round system was established by the 1991 constitution, and all but two (2002, 2006) of the seven presidential elections held since have gone to a second round.
Both houses of Congress are elected by proportional representation. The threshold is 3% of the valid national vote (Senate), half of the quota (House constituencies with 3 or more seats) or a third of the quota (House constituencies with 2 seats).
Parties run a single list by constituency which may be either closed (non-preferential) or open (preferential). For closed lists, the list of candidates is pre-ordered and cannot be altered, and voters only mark the party’s logo on the ballot. For open lists, voters may vote for one individual candidate on the party’s list, identified on the ballot by a number. The list is entirely re-ordered based on the number of preferential votes obtained by each candidate, with the allocation of seats done in descending order, beginning with the candidate who has the most votes. Voters may also vote only for the party list, but that vote is valid only for purposes of the threshold but not for reordering the list.
Seats are first distributed between parties (lists) using the d’Hondt method/cifra repartidora and only then between candidates on the lists, so there is an incentive for vote pooling — or to recruit individual candidates who will win enough votes on their own to help their party over the threshold.
The ballot paper is known as the tarjetón. The ballot in the presidential election includes the candidates’ name, picture and party/coalition logo(s). The ballot for congressional election is more complicated. Candidates on open lists are only identified by a number (their placement on the list, e.g. 001 to 100 for the Senate). All all constituencies (i.e. the regular national/territorial constituencies and the special minority constituencies) appear on the same ballot paper, but voters may only vote in one constituency.
Blank votes (voto en blanco) are legally recognized as valid votes. Unmarked and invalid votes (mistakes, marking more than one box etc.) are counted separately but do not count as valid votes. The constitution states that an election must be repeated if there is a plurality of blank votes (but that hasn’t always been followed). Blank votes have never come close to being a majority in any nationwide election (except for the Andean Parliament in 2014 and the minority constituencies in Congress), but it has happened in several local elections.
Eligibility and ballot access rules
The constitution and the law establishes various rules of ineligibility and incompatibility for members of Congress. Breaching the rules of ineligibility, incompatibility and conflict of interest may lead to the loss of a congressman’s investiture (investidura), as does absenteeism, embezzlement of public funds and influence peddling. The loss of investiture — commonly known as ‘political death’ — is decreed by the Council of State.
Essentially, there are two ways for candidates to obtain ballot access
- Endorsement by a legally recognized political party or movement. Parties lose their legal recognition if they win less than 3% of valid votes nationally for either the Senate or the House. The ‘ethnic’ parties competing for the minority (indigenous, Afro) seats in either house are exempted and automatically obtain legal recognition by winning a seat.
- Collecting signatures as a ‘significant group of citizens’ (grupo significativo de ciudadanos, GSC). The number of signatures required to obtain ballot access varies depending on the office: it is 50,000 for the Senate, 3% of valid votes in the previous election for President (580,621 for 2022) and a fifth (20%) the result of dividing the departmental electoral roll by the number of seats to be filled for the House. For more information on GSCs registered for the 2022 elections, see this report from the MOE.
- The law allows for coalition candidates for uninominal offices like the presidency. Since 2015, parties and movements who combined won up to 15% of vote in the relevant constituency may form coalition lists for collegiate bodies like Congress.
Since 2003, legislators have sought to strengthen and ‘order’ the party system. As a result, Colombia has rigid legal regulations on political parties and their internal operations, including (in theory) hefty sanctions for parties and politicians infringing these rules (see, for example, Law 1475 of 2011). Membership or activism in more than one party (doble militancia), which may also include simply campaigning for the candidate of a party other than your own, is banned. Floor crossing is banned and incumbents who wish to seek reelection for a different party must resign their seats twelve months before the candidate registration period begins (4 months before the election).
Electoral administration
Colombia has two main electoral management bodies: the National Electoral Council (Consejo Nacional Electoral, CNE) and the National Civil Registrar (Registraduría Nacional del Estado Civil, RNEC).
The CNE is made up of nine members elected by Congress for a four-year term, proportionally between candidates proposed by parties or coalitions with congressional representation. The CNE regulates, inspects, monitors and controls the activities of parties and movements and the electoral organization. Most of its activities take place before, after and in between elections — like recognizing and revoking parties’ registration, revoking ineligible candidacies, certifying election results, hearing complaints against election results and procedures, overseeing electoral campaigns and regulating campaign finance. The CNE is not an electoral court or tribunal like those found in other Latin American countries, like Mexico, and its investigative powers and capacities tend to be very limited in practice.
The Registraduría has both non-electoral administrative roles (civil status, civil registry, birth and death certificates, national identity documents) and electoral duties including the management and organization of elections (voter and candidate registration, setting up voting locations, counting the votes and reporting results). The National Civil Registrar (Registrador) is chosen by the presidents of the three highest courts following a merit-based selection process and serves a four-year term.
Conclusions
There is more to be said about Colombia’s institutions. This post does not cover regional and local governments, or the different mechanisms for popular participation (referenda, plebiscites, recall, popular initiative etc.), and it didn’t go into overly extensive detail about certain legislative and judicial procedures.
Of course, all the stuff above may beg the question — how does the theory/formal (de jure) differ from the reality (de facto)? Colombia is a country with a huge gap between what’s written down on paper and what actually happens in the real world, and this gap was likely widened with the 1991 constitution. In many cases, the reality unfortunately doesn’t match with the formal constitutional or legal word, and that’s perhaps a constant problem in Colombian democracy.
Mauricio García Villegas argued that in Colombia, “institutional stability and formal routines of law coexist with authoritarian and degraded institutional practices. This gives rise to a hybrid — or informal — institutionality which favours the reproduction of violence and legitimacy deficit.” This idea of ‘regime juxtaposition’ is fairly common in accounts of Colombia’s political and institutional history — Fernán González claimed that Colombian history has been characterized by the “coexistence of a modern state, with formally democratic institutions and a more or less consolidated central bureaucracy; and an informal structure of power represented by the traditional party system, which operate as two opposing but complementary federations of local and regional clientelist networks”.
Therefore, a hybrid or informal space — existing between formal legality and illegality — has been a feature of Colombian public life. This hybrid space is, among others, ‘populated’ by corrupt clientelism with its bureaucratic patronage ‘quotas’ (cuotas), pork-barrel spending ‘marmalade’ (mermelada) and informal alliances with unsavoury characters.
The upcoming 2022 elections will see candidates propose a myriad of solutions to these and other problems, including, as is the norm, various competing proposals for constitutional reforms. Hopefully, when they propose those reforms, you’ll have a better understanding of what it is they want to change…
