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  Number 88 | Noviembre 1988
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Nicaragua

A New Electoral Law—For a Stronger Opposition

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As President Reagan pursued more aid for the counterrevolution in August, Nicaragua's legislative body was busy pursuing the democratic goals of the revolution. The National Assembly debated and approved a new electoral law, one of three laws specifically designated for constitutional status. It also received the draft of the second, the National Emergency Law, which will be debated in October. The third is the Law of Amparo, a legal procedure used to seek review of administrative acts. Common in Latin American constitutional law, it is similar to writs of prohibition, mandamus and habeas corpus in the US judicial system.

The new electoral law, with its 215 articles, supersedes and combines two existing provisional laws: a 1983 one governing political parties and the 1984 electoral law. It stipulates legal procedures for presidential and legislative elections (next to be held in 1990), as well as for municipal elections, elections for the autonomous Regional Councils of the Atlantic Coast and any future referendums or plebiscites. It also covers the election of Nicaragua's representatives to the Central American Parliament.

The new law additionally provides guidelines for the formation of political parties, establishes institutions to regulate them and provides for their suspension and dissolution.

Some pick up their marbles and go home

The parliamentary opposition split on the law even before the debate began. Some walked out; most opted to stay and try to negotiate amendments. Four of the seven parties in the National Assembly planned to boycott the debate, but three of them (the Socialists, Independent Liberals and Popular Social Christians) could not convince all their representatives to support the boycott. In the end the only party to be wholly unrepresented was the Communist Party, with its two representatives. As many as 80 of the 96 Assembly representatives participated in the article-by-article voting (58 members, or 60%, make up a voting quorum).





Both the contras and the non-parliamentary opposition parties had earlier turned their backs on opportunities to be involved in the process. Point 26 of the government's follow-up proposal to the Sapoá accords would have permitted contra representatives to discuss "a pluralistic and participatory electoral system" in the National Dialogue once a definitive cease-fire was signed. The contras, however, broke off negotiations after having reached agreement on about two-thirds of the 32-point proposal. For their part, the opposition parties derailed the National Dialogue itself, by insisting that it take up constitutional reforms outside its purview. Faced with such intransigence, the Nicaraguan government finally decided to proceed without them, and submitted its draft of the electoral law to the National Assembly.

Little understanding of democracy

The parliamentary opposition intent on a walkout revealed its stance on the opening day of debate. Luis Sánchez, of the Socialist Party, was the main spokesperson for their arguments, supported by Mauricio Díaz of the Popular Social Christian Party and Virgilio Godoy of the Independent Liberal Party. They accused the Assembly leadership of suppressing the minority findings of a legislative commission that had studied the bill, and charged that the majority document merely formalized the FSLN's domination of the existing electoral structure through its procedure for electing members to the Supreme Electoral Council. They also objected to a requirement that new political parties show the support of at least 10% of the electorate to become legally recognized, arguing that the clause restricted the free formation of new parties. They further objected to a requirement that a party could only seat national or municipal representatives if it got at least 5% of the valid votes, claiming that it would mean the end of various parties. They even faulted the legislative commission for not having consulted the non-parliamentary parties. With that, various members of those parties and both Communists walked out of the Assembly.

In fact, the National Assembly's own procedural rules stipulate that minority proposals need only be discussed if the majority one is not approved by the full Assembly. As for electing members to the Supreme Electoral Council, the method is already specified in the Constitution, which was approved by the majority of the parliamentarians after full debate. And finally, to argue that the bill should have been debated by the non-parliamentary parties, when they were the very ones to abandon the National Dialogue in which the discussion could have taken place, is politically irrational. On the remaining points of disagreement, compromises reached in the ensuing debate, which took place without their participation, substantially modified the text of the bill.

The actions of those intent on boycott grew in part out of their fear of a law designed to build political pluralism around strong parties or coalitions, and not the current proliferation of micro-parties. Other opposition members accepted the challenge of looking for compromises. The boycotters seem not to appreciate how democracy ought to work: that a parliamentary majority can be expected to use its muscle to assure passage of issues that are key to it, while compromising on others that grant elemental equity to the minorities. In short, they have not shaken off the half-century experience of Somoza imposition.

As a whole, the opposition approached the election law with one eye fixed firmly on the upcoming US presidential elections. As in other critical periods of Nicaragua's revolutionary process, the basic political dividing line was drawn between those groups that defend Nicaragua's right to self-determination and those that bend with the wind blowing from Washington.

The boycott thus also responded to a much deeper issue: the repeated attempt to call into question the legitimacy of current Nicaraguan institutions. The radical opposition says it is fighting for democratic representation, yet it refuses to use any of the forums for representation that have repeatedly been offered. Led by the non-parliamentary parties, this wing of the opposition has participated in a chain of events that, at least domestically, has called only its own legitimacy into question.

Hoping to discredit the 1984 presidential elections, some of the parties farthest to the right abstained, and thus are not represented in the Assembly. As a result, they were not involved in drafting the Constitution. When offered the opportunity to present their opinions to the constitutional drafting commission, these parties again refused, and later, when the draft was taken to open popular forms, they did not participate. When, still later, in compliance with the Esquipulas II peace accords, the government invited them to a National Dialogue, they used it to deliver an ultimatum to the government to modify the Constitution, refusing to accept the agenda of discussing future legal projects such as the electoral law. Now these same non-parliamentary parties have found a handful of allies inside the National Assembly willing to discredit the electoral law.

The Logic of the Law:
Pluralism and Political Strength

The electoral law combines a fundamental principle of the Constitution—political pluralism—with the goal of encouraging the emergence of more substantive opposition political forces than now exist. (There are currently nearly two-dozen opposition parties in Nicaragua.) This combination is found in the constitution of the electoral institutions and regulation of political parties, the rules governing alliances and popular endorsement, the system of proportional representation at all levels, and access to the news media and to public campaign financing.

The Supreme Electoral Council. The Supreme Electoral Council (CSE), which is Nicaragua’s fourth branch of state, is the ultimate authority over electoral procedures and is responsible for ensuring election fairness and ruling on claims of irregularities.

Some CSE decisions can be appealed to the Supreme Court. These include those authorizing, suspending or annulling political parties; accrediting representatives to the Assembly of Political Parties; mediating any internal conflicts that may appear and overseeing the parties' compliance with the laws of their own statutes and rules.

The Constitution stipulates that the President is vested with the power to nominate five slates of three candidates—all of them judges—for the CSE seats, from each of which the National Assembly selects one. During the current debate, a motion was put forward that the President consider lists proposed by representatives of the parties in the National Assembly for two of the five slates, giving preference to the names proffered by the parties that received the highest votes in the last election. The motion, made by a Sandinista representative, was passed by a large majority, and will go into effect for the formation of the next CSE.

The Council of Political Parties. This council has the power to allow new parties and to suspend or decertify old ones judged to have not complied with provisions of the electoral law.

There was a great deal of debate over regulations governing the founding of new parties. A proposal that would have required new parties to get signatures from 10% of the registered electorate (some 150,000) was passed up for a provision requiring them to set up a skeletal party framework that includes national leadership, 6 coordinators for each of the 9 regions and 14 departments, and 5 for each of the 139 municipalities—a total of 851 members. This, too, is meant to curb the proliferation of political party fractions currently going on. Existing parties are not subject to the new law, and factions of the existing parties currently requesting recognition will be processed under the old law.

Acts that would justify suspension of parties include unethical campaign practices as determined by the CSE, violation of laws or of CSE orders and failure to register with the CSE. Grounds for decertification include misuse of public campaign financing, receipt of illegal campaign funds, or actions contrary to "the liberty and independence of Nicaragua... its sovereignty and the right of self determination of the Nicaraguan people." (The Constitution grants a party the right to appeal its decertification to the Supreme Court if it can argue that the Council abused the interpretation of these grounds.)

The Council of Political Parties is made up of eleven members, six of whom will be directly elected by the National Assembly; a seventh, the president, will be selected by the Council itself from a slate of three nominees provided by the President. The remaining four will be chosen by the Assembly of Political Parties, a consultative body to the Council made up of one representative from each legally recognized party. In a proposal by a Democratic Conservative Party representative, the secretary of the Council will be chosen from among the six National Assembly selections, and must be from the party that won the highest number of votes in the last elections. A party that controls the National Assembly could thus only control this body with a maximum 6-5 majority.

The Assembly of Political Parties, which in the previous law was considered an advisory body to the Supreme Electoral Council, passes in the new law to be an advisory body to the Council of Political Parties, which will, in turn, advise the Supreme Electoral Council on the preparation of calendars, rules of electoral ethics, budget allowances and whatever other business the Council deems pertinent.

Alliances and Popular Endorsement. The new law authorizes the formation of party alliances, which may put forward candidates in any elections. The old law stated that once a group of parties had formed a coalition, those parties could no longer present individual party candidates. Under the new law, they may field a candidate as an individual party in any race where the alliance to which they belong has not also done so.

In elections for the Autonomous Regional Councils in the coast and Municipal Councils anywhere in the country, candidates may also run by popular endorsement. This allows access to the political process to groups which, for particular ethnic interests or those having to do with municipal level problems, do not feel represented by any political party or coalition. To initiate the process, non-party candidates need only have the backing of 1% of the electorate in their corresponding district. To avoid a plethora of such candidates by campaign time, a candidate must be able by then to provide signatures of 10% of the registered voters in the district.

Proportional Representation. The method for assigning seats to the National Assembly, the Central American Parliament, the Autonomous Regional Councils of the Atlantic Coast and the Municipal Councils is based on the proportion of the electoral vote received by each party. This method facilitates minority party representation.

The nine regions of the country are assigned National Assembly seats according to their respective populations, but a fixed number of votes is required for each seat. In the previous system, each party's "leftover" votes were re-tallied at a national level to proportion out the seats for which no party had reached the fixed number. According to the new system, only the votes in electoral districts where not all seats have been filled will be re-tallied.*
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*The old system had a major flaw, in that, in the second round of counting, the seats were proportioned to parties in regions where they had attained the highest number of leftover votes. This inadvertently left some regions with fewer representatives than they had been assigned based on population.


Also unlike the previous electoral law, which set no minimum, a party or alliance must now receive at least 5% of the popular vote to qualify for a seat. Although the legal status of a party that does not receive 5% will not be jeopardized, this provision is aimed at assuring that the political groups represent significant sectors of the electorate. The point finally received unanimous approval, but not before unleashing major controversy. It was an awkward debate, since parties that otherwise alleged their rootedness in the electorate were admitting that they might not be able to garner the minimum percentage of votes needed for representation.

Access to the Media. This was one of the most hotly debated points, and in fact reached an impasse in the plenary. A special commission formed to study the issue recommended that the total amount of daily television time guaranteed to presidential and legislative candidates be increased from 15 minutes (as it was in the old law and the new draft) to 30 and on all state-operated radio stations from 30 minutes to 45. The 30 minutes of time guaranteed by each private radio station remained the same.

The President's draft recommended that the allotted media time be divided equally among the parties, as in the previous law. The Conservatives, the second largest parliamentary party, counter-proposed that time be allotted according to party strength in the last election, with a weekly minimum guarantee of 7 or 5 minutes, depending on the type of elections, even if this means going over the maximum. The amendment was approved.

Even though the election of representatives to the Central American Parliament is also a national election, the allotted time will be 20 and 25 minutes respectively for the different media. For the municipal and Atlantic Coast elections, preference will be given to national and regional radio coverage, reserving television only for the opening and closing of the campaign.

For the unprecedented elections (Central American Parliament, and municipal and autonomous government seats), media time will be distributed according to the votes the parties obtained in the 1984 presidential elections. Those that either did not exist or did not participate in the 1984 elections will be allotted the same time as the parties that received the fewest votes in those elections. Each party, of course, reserves the right to buy more media time. Both the time guaranteed by the state and any additional time will be bought at pre-established rates authorized by the Supreme Electoral Council.

Public Financing. Partial financing for the electoral campaigns will be provided from the national budget, and will be distributed according to the same system as for media time. Parties or alliances may also receive private contributions from Nicaraguan citizens residing in the country, but are prohibited from receiving funds from state institutions or private or mixed enterprises. In no case may they receive donations from a foreign source. This last proviso was added since the 1984 elections, although it is a standard clause in election laws around the world.

By focusing privileges on the relative support parties received in prior elections, the new election law seeks to encourage those parties that have real broad-based support and not those that are just empty shells. It also encourages smaller parties to form coalitions among themselves or with larger parties. As can be seen above, both the FSLN and the larger minority parties supported this logic.

All these provisions in the law create new political openings. But while they make for a more pluralistic electoral system, they also demand a more serious one.

A Law for National Reconciliation

A number of provisions in the new electoral law open participation to Nicaraguans who were previously excluded. The prior electoral law, for example, denied voting rights to former National Guard officers implicated in crimes and not judged by the tribunals, as well as to anyone who has planned or directed counterrevolutionary activities or solicited funding for foreign intervention in Nicaragua. By now including these sectors, the law complies with the Esquipulas II accords and aims to turn the armed opposition into political opposition, or into regular citizens.

Along the same lines, the opposition parties are no longer required to "respect the fundamental principals of the Popular Sandinista Revolution," "defend the revolution" or even "promote and support the patriotic unity of the nation," as before. The law now only holds the parties to the Constitution, in which the sole ideological constraint is that the organizing of political parties dedicated to reinstating Somocismo or any similar regime is forbidden. The only duties include promoting political, social and economic rights, taking responsibility for Nicaragua's liberty and independence and defending its sovereignty and self-determination.

Nor can any form of political thought or previous affiliation to a counterrevolutionary organization hinder a party or alliance from proposing someone as a candidate to an elected post. The Marxist-Leninist Party presented a motion to exclude candidates who had in any way aided the counterrevolution, but National Assembly president Carlos Núñez countered that this would "close political options and fuel the war." Only district and Supreme Court judges, members of the electoral commissions and members of the army or state security are prohibited from running.

General Aspects of the Electoral Law

The impartiality of the elections is maintained through methods of registration controllable by the population, strict procedures for the secrecy and freedom of balloting and vote counting, and it has been strengthened over the 1984 law by guaranteeing that the institutions responsible for carrying out elections are politically mixed.

Pluralism in the CSE. As mentioned above, two of the judges to the Supreme Electoral Council will be selected by the opposition in the National Assembly. The CSE will take this same goal of political pluralism into account in naming the three members that will make up each of the nine Regional Electoral Councils. These councils will in turn select three-member Voter Boards, in charge of registration, in the following way: the Regional Council itself will name two members, including the president, and will select the third from proposals offered by the parties represented in the National Assembly.

In addition, each of the parties or coalitions may designate its own auditor to each of these levels, including the CSE itself, and to the National Computer Center for the final count. This is a broadening of their functions over the 1984 law, when auditors were permitted in the Regional Councils and the Voter Boards for registration and local vote counting, and in the final national tally. (Two points should be noted here: only the FSLN had enough members to send auditors to all the electoral districts, yet respect for electoral honesty in the 1984 elections was widely attested to by international observers and journalists)

Electoral Districts. There are two separate elections of a national character. The President and Vice President will be elected by a relative majority of the national voters. The 20 representatives to the Central American Parliament will also be elected by the national electorate, but by proportional representation.

Representatives to the National Assembly will also be elected by the proportional method of electoral quotient in the nine regional districts. In other words, each party will present a slate of candidates, in the order of its choice, totaling the number allotted to the particular region proportionate to the population. The names topping a party's slate will automatically be elected for each block of votes that party receives equal to the quotient determined necessary to elect a candidate.

The 45-member Regional Councils in the autonomous regions will be elected by a procedure similar to that for the National Assembly, with the following differences: 1) each region will have 15 districts, each of which will elect 3 members to the council; 2) to guarantee that all ethnic groups are at least minimally represented in their respective Regional Council, certain districts in each region have been designated in which a member of a specified ethnic group must head any slate of candidates. The Regional Councils, once elected, will choose the Regional Coordinator from among their members, as well as a 7-member Executive Board. The latter must include at least one member of each ethnic group living in that region (four in the north and all six in the south).

The Municipal Councilors will be elected by a mixed process of relative majority and electoral quotient. In municipalities of more than 20,000 inhabitants and in those that are also departmental capitals, five councilors will be elected by relative majority and another five by electoral quotient. In municipalities of less than 20,000 inhabitants, the breakdown will be 3 and 2 respectively. According to the Municipal Law, the councilors will then elect the mayor from among their number.

Voter Registration. All citizens whose 16th birthday falls on or before election day have the right to vote. Registration lists will be printed for each election, and each citizen will receive a voter registration card. Currently, Nicaragua does not have the resources to set up and constantly update a permanent electoral register, just as the state cannot provide everyone with identification documents. As in the registration preceding the 1984 elections, the list of registered voters will be publicly displayed at the end of each day during registration. These lists will remain on display for ten days after registration so that any neighbor can verify or challenge the information. For additional control, people will be required to vote at the center where they registered.

Electoral Calendars. The calendars for these elections set constitutionally or by electoral law are the responsibility of the Supreme Electoral Council. The date for the elections will be determined by the CSE for any Sunday within the first 30 days of the 90 prior to the date on which those elected are to take office. The date for plebiscites and referendums—introduced for the first time ever in Nicaraguan electoral legislation—will be determined in the specific legislative decree calling for them. The date for the elections to the Central American Parliament will be designated in accordance with the treaty that established it.

The registration period for citizens will also be determined by the CSE. The length of electoral campaigns is determined by law as follows: 80 days for presidential and legislative elections; 42 days for elections to the Central American Parliament, Regional Councils and Municipal Councils; and 30 days for plebiscites and referendums.

Plebiscites and Referendums. As defined in the new law, a plebiscite is the direct consultation of the people concerning important measures that would affect the interests of the nation. A referendum, on the other hand, is the act of directly submitting laws or reforms of an ordinary or constitutional nature for the population 's ratification. Neither financial backing nor obligatory publicity is contemplated for these consultations.

Campaign Literature. The Supreme Electoral Council will work out the use schedule for the total media time guaranteed to the parties upon considering their proposals; the Regional Electoral Councils will reconcile the calendar of proposals for public rallies by the parties in each region. Advertising material imported by the parties is exempt from customs duties. The state is committed to securing the fuel and materials necessary for preparation of the literature. Moreover, all candidates' existing jobs are guaranteed with their salaries paid for the duration of the campaign.

Another Crossroads?

The new electoral law has received such contrary declarations by diverse political groups that it can justifiably be considered another of the Nicaraguan revolution's crossroads.

The opposition daily La Prensa did not bother to inquire about the progress of the debate after a segment of the parliamentary opposition withdrew from it. Once the law was approved, La Prensa returned to the attack, publishing statements by the PLI's Jaime Bonilla, a frequent spokesperson for the opposition parties in the National Dialogue. "The Sandinistas," Bonilla asserted, "are creating the legal basis for their fraudulent permanence in power." The law would be "another cause provoking more crisis and war," something "so serious that it is even probable that the rebels will consider not negotiating the cease-fire as long as that new Sandinista law is not repealed." Finally, he stated that "the repeal of this law will be an inevitable and continuing demand of the civic opposition." The same daily ran an editorial supporting the thesis that an "authentic law was still pending." The editorial's strongest objection was to the prohibition of any donations raised outside the country, and the brevity of television time given the electoral contenders.

Those opposition representatives who participated in the debate gave measured positive responses. Cesar Augusto Castillo of the Democratic Conservatives called the new electoral law "not the best in the world, but within the political context of this country during the last ten years, it's acceptable." He went on to say that the debate had structured a more flexible law than he had expected. Eduardo Coronado of the dissident faction of the PLI had said at the outset of the debate that "we can't accuse the FSLN of being totalitarian if we don't participate in the discussions about the law." Once it was approved, he granted that it "guarantees some measure of political pluralism, and if it doesn't fully satisfy my party, it is much more responsive than the President's proposal." He also said that any space for political advertising that opens up should be used.

For his part, National Assembly president Carlos Núñez stated that, with the law's approval, any type of election can now be called. The law's fundamental element, he underscored, is that the different election forms make the participation of currents or fractions with a small social base possible through alliances that unite forces and resources. He also said that there are no more excuses for abstentionism or for counterrevolutionaries to fail to join the country’s political activities. At the same time, he insisted that no electoral law can make up for a party's lack of followers, and abstention should not be used as an easy way out to conceal that fact.

During the debate, the existing National Council of Political Parties announced two resolutions, one legitimizing the PLI faction headed by Virgilio Godoy, and the other doing the same for the Social Christian Party (PSC) faction led by Erick Ramírez. Considering that Godoy 's wing of the PLI boycotted the debate in the Assembly, not Coronado’s, the Council appears to have considered the arguments presented more than its own political sympathies. This decision bodes well for future impartiality and fairness in electoral organizing and party regulation.

The new electoral law is an important step in establishing the ground rules for political pluralism in Nicaragua. Throughout the debate, the FSLN evidenced its desire for a solid, less fragmented opposition, the only way to achieve constructive compromise in government.

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