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  Number 121 | Agosto 1991
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Nicaragua

Inside the Property Debate

Envío team

In a concerted effort to reverse the revolution's agrarian reform, rightwing sectors have managed to thoroughly confuse the real issues around Nicaragua's property debate both in and outside the country. Rightwing National Assembly representatives introduced a bill that provoked violence around the country when Assembly president Alfredo César called it to floor debate after reneging on a last-minute compromise not to do so. Some 50 members of the US Congress even signed on to a "Dear Colleague" letter—sent to César—that condemns Sandinista "threats to democracy," referring to the upsurge of violence around the property issue. The letter offers full support to rightwing Assembly representatives, but many of the signatories are probably unaware that President Chamorro herself opposes César's position, or that passage of the bill that provoked grassroots violence would, in fact, take land and homes away from the poor majority.

While abuses were clearly committed during the Sandinista government's two-month lame-duck period, the Right has equated the term "piñata"—first used to describe the Sandinistas' giveaway of state properties after the February 25 elections—with virtually the entire urban and agrarian reform. Rightwing propagandists have caricatured laws passed during that period, particularly 85 and 86, which protect urban property holders without legal title, as laws "protecting the piñata." They tout the bill submitted to the legislature by UNO's National Conservative Party (PNC) as simply righting the wrongs of the piñata, while posing no threat to the poor. In fact, the PNC bill would repeal these two laws and permit a massive return of rural land in the hands of cooperatives and individual peasant farmers to former owners.

The PNC's property bill affects much more than just Sandinista abuses, as do recommendations arising from UNO's discussion of that bill, announced as this issue of envío goes to press. Those recommendations are an obvious tactical strike against the FSLN just 10 days before the party's first national Congress. (See "The Right Wing's Third Try for Power," this issue, for an in-depth analysis of the rightwing offensive.)

Urban land: Housing as a human right

Laws 85 and 86 were passed on March 29, 1990 to guarantee rights of ownership to houses or lots granted urban residents by the government during the previous 10 years.

Law 85 covers anyone who, as of February 25, 1990, was living in a house that was in state hands, and requires the appropriate government authority to grant free deeds to these owners. These houses were either confiscated from the Somoza family and other Somocistas under decrees 3 and 38, or expropriated under the Absentee Owner Law in 1982. While the former mainly included luxurious mansions, the latter consists of all manner of homes, including slum dwellings, confiscated from owners who left the country for more than six months.

Under the revolutionary principle that a home is a human right, these expropriated houses were then given, assigned or rented to individuals or organizations. Law 85 grants them ownership. Some 20,000 families throughout Nicaragua are beneficiaries of this law, 15,000 in Managua alone. Of the 15,000, according to the Communal Movement, some 13,500 are simple houses that went to poor families.

Law 86 legalizes all urban lots—and the houses on them, if one has been built—assigned to people by the state before February 25, 1990, and similarly requires the government to issue free deeds. These urban land parcels include entire neighborhoods confiscated from large Somocista landowners who were exacting monthly land rents and "progressive urbanizations"—large vacant tracts that were subdivided and supplied with basic water and electrical services by the Sandinista government. Law 86 legalized about 50,000 lots, requiring all eligible persons to prove they do not already own another house or urban land. Neither law covers people who received homes or lots after February 25.

Of the houses and lots legalized by these two laws, former Minister of Agriculture and Agrarian Reform (MIDINRA) Jaime Wheelock reports that most of the homes were rented or assigned to the same family for many years. The most appropriate procedure, he admitted, would have been to set up long-term leases that would amortize in 15 or 20 years, "but vengeful officials [from the new government] would just have annulled the contracts." Laws 85 and 86 were passed, says Wheelock, after consulting with former US President Jimmy Carter and the incoming UNO government in the context of the Transition Protocol, to prevent thousands of people from being thrown out of their homes. Not all properties were legalized free of charge, only very small ones. Other residents paid a bargain rate fixed at the equivalent of $8 per square meter for houses under 100 square meters and twice that for all larger houses.

Says Wheelock, "Some 200 [of the 20,000 total] are large homes. There is almost no family living in those houses capable of buying them for their real value. Government officials were very poorly paid for years; a minister made the equivalent of $200 a month, which [given the real exchange rate] was sometimes worth only $80. We calculated an accessible housing price."

Rural land titles

The outgoing Sandinista government also authorized over 9,000 rural land titles during its lame-duck period. The majority of those, encompassing some 1,275,000 acres, simply legalized land already in the hands of individual or cooperativized peasant farmers as part of a slow and costly titling process begun in 1989. More controversial are the titles for another 255,000 acres still under state administration at that time. According to Wheelock, 70% of that "new" land was deeded to cooperatives, 30% to private producers.

Of that 30%, some titles went to fulfill "outstanding agreements" with large producers, reportedly including PNC Assembly representative Nicolas Bolaños. Properties already in the possession of the army and Ministry of the Interior (now Ministry of Government) were also legalized. In addition, large farms that some wealthy Sandinista militants had donated to the state at the beginning of the revolution were returned, to prevent them from being privatized into rightwing hands. Lands were also given to mothers of heroes and martyrs, historic FSLN collaborators and combatants, peasants returning after military service, and demobilized members of the army threatened with unemployment. Still other lands, according to Wheelock, were given out as part of a plan attending to those who had been laid off since 1988, including small merchants, workers, artisans, agrarian technicians and base-level leaders of the ATC and UNAG.

The largest farm, over 13,000 acres, went to Ricardo Colonel Kautz, former deputy minister of MIDINRA. While used as “proof” of the piñata by La Prensa and other rightwing media, Colonel, in a letter responding to La Prensa's insinuations, explained that his great grandfather founded a 13,600-acre farm in Río San Juan in 1903. In the late 1940s, in persecuting Colonel's German family, Anastasio Somoza García managed to take control of that farm, forcing Colonel's mother, him and his siblings to retreat to a small farm on the other side of the Costa Rican border. By July 1979, the Somoza family had abandoned the Río San Juan estate and Colonel donated it to the revolutionary government. Given that the UNO government "promoted the privatization of state agricultural properties... we considered [the farm's] restitution opportune," wrote Colonel. In a separate statement, Colonel said he was willing to donate the farm to a land bank that would help resolve the land shortage for peasant farmers and demobilized members of the army or Resistance (former contras).

Where's the real piñata?

Given the chaotic and hasty way in which the titles were dispatched, Sandinista leaders admit there were abuses. But they emphasize that land titling after February 25 essentially furthered the agrarian reform process that had distributed over 5 million acres over the previous 10 years. They argue that it was not really a piñata, since only 90 of the over 9,000 post-election titles were for properties larger than 700 acres. As for urban land titles, they argue that everyone has a right to the house they were living in. But even though the vast majority of these cases cannot be called abuses, the FSLN has paid a high price in public image, especially because of the corrupt practices that did find their way into the process.

There are accusations, even from the Sandinista base, of some leaders getting a windfall by assigning themselves large farms or luxurious houses; there are people who own more than one house or farm; there are those who received houses they never lived in. Determining who "deserves" what is obviously a subjective task, open to abuse by corrupt or greedy leaders.

The question remains, then, if the best way of correcting Sandinista abuses is to support the repeal of Laws 85 and 86 and other aspects of the rightwing property bill—or if correcting them is really even the right wing’s intention at all.

Dr. Sergio Ramírez, former Vice President and head of the Sandinista bench in the National Assembly, maintains that the FSLN "has always been willing to review abuses." He reports that, in a high-level meeting between the FSLN and the government over a year ago, César agreed to provide a concrete list of what UNO considered FSLN militants' property violations during the transition period. To date the FSLN has received nothing. While this does not mean there were no abuses, its underlying meaning, Ramírez says, is that "this is an issue of political manipulation." It is clearly to UNO's advantage to confuse the issues of property for the poor and some FSLN members' corrupt practices—to both divide the FSLN and gain ground in the property battle.

What does the Right really want?

Decree 11-90, issued on May 11, 1990, was the government's answer to the demand that unjustly confiscated properties be reviewed and returned. But the PNC proposed its new property bill because that decree "does not [give] the Confiscation Review Commission," created by the decree, "the constitutional legal capacity" to annul certain legal contracts, like those of third parties, that would permit the return of properties "to their legitimate owner." Nor does it automatically guarantee the return of occupied property. The National Assembly Property Committee's recommendations, announced publicly on July 9, reflect César's more politically adept hand, adapting the right wing’s land demands to the larger political goal of discrediting and creating divisions within the FSLN.

Decree 11-90. The Supreme Court declared two articles of Decree 11-90, which granted the Commission’s decisions the force of law, unconstitutional on May 17. Those articles allowed former proprietors, with merely a favorable judgment by the Commission in hand, to demand houses or land back "with police support if necessary." Since other people were usually living on that property, sometimes with their own deed to it, this created chaos and, sometimes, violent conflicts. Agrarian Reform Institute (INRA) Minister Gustavo Tablada reported that some former owners were actually contracting people to oust those currently living on the disputed land. The Supreme Court decision declared that such powers did fall under the jurisdiction not of the executive branch (which appointed the Commission), but of the judiciary. The President issued a new decree, 23-91, on May 24 to establish an appropriate legalization procedure and an indemnification process for legally occupied properties.

PNC bill. The PNC bill would again grant the Confiscation Review Commission's decisions the force of law—already declared unconstitutional by the Supreme Court—and would extend the right of confiscated former owners to file their claim with the Commission for 10 years. The bill would repeal Laws 85 and 86, annulling all titles they granted without consideration of the occupants' income or poverty level, how long they had occupied the property or whether it was part of a pre-existing titling process. The FSLN considers the repeal of these laws unconstitutional, since the Constitution states that a law cannot be retroactive—it cannot take away legal rights granted previously by another law.

The rightwing bill states that if, as of last year's elections, the disputed property was in the hands of legally registered cooperatives "that are fulfilling a social function," the former owner would be indemnified. But if the cooperative did not have formal title or was not fulfilling a social function, it would be returned. Barricada reports that only 15% of almost 4,000 cooperatives throughout the country had completed the legal titling process by last February 25, meaning that some 3,400 would be confiscated. According to the bill, all land of any size pertaining to individuals holding agrarian reform titles would be returned to the former owner, even if in the hands of productive peasant farmers. And even if individuals hold regular property titles on land assigned by the revolution, the former owner could demand those titles annulled based on the International Human Rights Convention. The occupant would then have the right to indemnification. In addition, third parties—those who purchased property from someone benefited by Laws 85 and 86—have no protection or rights.

This bill represents a sweeping reversal of virtually the entire urban and agrarian reforms. The sole positive effect of its introduction into the national property debate was the massive mobilization of the Communal Movement in response. In the Transition Protocol, as well as in numerous other later accords, the government promised to respect the rights of those who received their property before the February elections. The mayor's office should have granted free titles, according to Laws 85 and 86, to all such urban properties. As the date for a vote on repeal of those laws drew near, the Movement, headed by former Foreign Minister Father Miguel D'Escoto, found a way to draw the masses together to protest. Having taken over the Managua mayor's office, organizers set up tables outside and called on all citizens awaiting title to their property to register there; the call drew 7,000 heads of household in the first two days. Two weeks later, that number had grown to more than 30,000.

Since Managua Mayor Arnoldo Alemán refused to negotiate, D'Escoto and representatives of the Presidency signed an agreement on July 3, in which the government agreed "to initiate immediately the legal registration process of those lots and houses occupied or assigned as of February 25, 1990," that Managua residents legally received from the state.

The Property Committee's "Recommendations." On July 9, Assembly president Alfredo César, also head of the Property Committee, read his committee's recommendations after more than two months of hearings. The key difference between this new project and the PNC bill is its apparent populism and political acumen, undoubtedly the handiwork of César himself. The goal of the recommendations is to draw a sharp line between very poor beneficiaries and everyone else, trying to usurp the image of defender of the poor and divide the FSLN grassroots base from middle and upper class sectors. César invited numerous national leaders and foreign diplomats to attend that Assembly session; US Ambassador Harry Shlaudemann was seated next to César's wife.

The new project proposes that a decision by the Confiscation Review Commission favoring the confiscated claimant guarantee that the property be returned, thus not allowing for the possibility of indemnification. It also states that "deserving cases" of confiscation under Decree 3, which expropriated Somocista properties, would also be reviewed.

With respect to rural land, the recommendation proposes that deeds be granted free of charge to those whose farms were legalized with agrarian reform titles between February and April 25, 1990, only if the property is under 17 acres in the Pacific and 34 acres in the rest of the country. This would exclude almost all cooperatives, just as the PNC bill would, and many individual small farmers. Urban house titles would only be given to those covered under Law 85 who do not own another home and whose house is no larger than 60 square meters. Those who received larger houses would have the right to purchase them at their current market value, suggested at an exorbitant $150 per square meter. The largest houses, referred to as suburban farmhouses and vacation houses, must be returned to the state, as must houses assigned to organizations and foreigners. With respect to urban lots, the proposal is very similar to Law 86, granting free titles, with no express size limit, to the same kinds of neighborhoods.

The proposal also calls for the repeal of Laws 85 and 86, but "after legislating the previous recommendations." It would additionally repeal Law 88, which granted the legal status of conventional transferable titles to earlier non-transferable agrarian reform titles. César's proposal, too, would return to the state all agrarian reform titles that have been purchased to date by third parties. (UNO's government platform chided the FSLN for never granting "real" titles to agrarian reform beneficiaries and promised to do so if UNO were elected. INRA Minister Gustavo Tablada told El Semanario, "One could think there was a contradiction here," but denied there was. Ramírez dared UNO to repeal the law, reminding the Right that many peasants joined the contras partly because of those non-transferable titles.)

The heaviest general criticism of this proposal from Sandinista and less vengeful UNO sectors relates to the excessively radical size limits for land and houses, clearly a provocation. Emilio Pereira, finance minister and president of the Concertation board, told Barricada that "these recommendations have effects that could somewhat counteract the stabilization plan. It doesn't matter what the limit is, it can only be implemented through a concertation."

Marxist-Leninist Party leader Carlos Cuadra said the goal of César's proposal is to put pressure on the FSLN and broaden the right wing's negotiating space in the concertation talks. FSLN Assembly representative Dora María Téllez said that the Right simply wants to return to the land structure existing under Somoza, with peasants limited to 17-acre smallholdings "while the large landowners can have as much as they want." These same people, she said, decapitalized, pillaged and mortgaged their properties, fled with the money and now they want them back.

In the absence of the entire FSLN bench, the 52 representatives present at the July 9 legislative session approved by consensus a proposal that the recommendations be used to formulate a new property bill to be presented on August 26, shortly after the Assembly returns from recess. The FSLN bench has refused to return to the legislature until consensus on the property issue is reached, through negotiation, in the concertation forum, where all social sectors are represented through their own organizations. "We will not be accomplices to this project," said Ramírez.

The negotiation forum

Concertation negotiations continue. In early July, Pereira reported that agreement had been reached in certain areas: that Nicaraguans who only have one home and were living there before February 25 should be allowed to keep it; all foreigners and any Nicaraguans with more than one house or who received their house after February 25 should return it to the state; anyone not awarded rural land specifically through the agrarian reform should return it to a state land bank. Pereira later added, after hearing César's recommendations, that concertation participants were discussing setting a 100 square-meter limit on the size of homes, not 60.

"The government has ratified its position that we can begin to solve the property problem only through consensus in the concertation" said Pereira. Dora María Téllez expressed the same idea in another way: "This is like the moral of The Little Prince: you can't pass a law that's unenforceable."

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