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  Number 429 | Abril 2017
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Nicaragua

What can we expect fromthe agreements with the OAS?

Reflections on the limited core contents of the agreements between the Nicaraguan government and the Organization of American States’ secretary general, and on the corrupted municipal elections scheduled for November.

José Antonio Peraza

How does one classify Daniel Ortega’s government? The term “electoral authoritarian regime” is being used with increasing frequency to define a particular government model that isn’t an electoral democracy, but does permit certain freedoms. Andreas Schedler, the Austrian political scientist who has best conceptualized this type of regime, describes it in brief as neither practicing democracy nor regularly recurring to open recession. It organizes periodical elections to try to achieve at least a certain appearance of democratic legitimacy, with the hope of satisfying both external and internal actors. But its dream is to harvest the fruits of electoral legitimacy without running the risks of democratic uncertainty. Seeking a balance between electoral control and electoral credibility, Schedler explains, places it in a nebulous area of structural ambivalence.

Daniel Ortega’s regime seems to fit this classification quite well. We political scientists could comfortably consider the Nicaraguan government to be one of electoral authoritarianism.

Some determinants of electoral authoritarianism


A basic element for determining whether a government is an electoral democracy or practices electoral authoritarianism is its degree of electoral legitimacy, which in turn depends on whether it used electoral fraud and/or serious political manipulation to take office. The regime of Daniel Ortega would also appear to classify as electoral authoritarianism from this perspective.

Electoral authoritarian regimes are situated between two frontiers, being distinguished from both “closed dictatorships,” which do not hold national multi-party elections, and “electoral democracies,” which may have certain quality defects, but meet minimal democratic norms. On the surface electoral autocracies and electoral democracies appear very similar, with both holding national elections with universal suffrage and opposition parties. The difference between the two regime types lies not in the formal institutions but in their real practices. Electoral autocracies develop practices that violate democratic norms so systematically and severely that we’re forced to classify them as exclusionary, uncompetitive and inequitable, with elections so barely pluralist that they’re effectively not democratic.

Other corroborating views


We can cite three organizations that are experts on electoral issues to more exactly characterize the current regime. Two are international organizations that have observed elections in Nicaragua over time: the Carter Center and the European Union. The third is the highly credible national observer organization Ethics & Transparency.

The Carter Center’s April 9, 2014, communique following the reelection of most magistrates in Nicaragua’s Supreme Electoral Council (CSE) was unequivocal: “Under the leadership of its recently reappointed electoral authorities (except for two new members) the image and credibility of the CSE, together with the standards governing democracy and elections in Nicaragua, have degenerated significantly in the wake of the confirmed fraud perpetrated in the 2008 municipal elections. The government and electoral authorities in Nicaragua were entrusted with the responsibility of safeguarding and ensuring the integrity of the 2011 national elections. On the contrary, however, terms of CSE member magistrates were extended by executive order of the President in January 2010, clearly overstepping the office’s legal powers and thereby compromising the legitimacy of presidential appointments. On Nov. 6, 2011, this same CSE organized and held the least transparent national election in Nicaragua in the last 20 years, the results of which have proven to be impossible to verify, setting a damaging precedent for the future of democracy in Nicaragua.”

What was the European Union’s evaluation of that same 2011 electoral process? “…it has been directed by an Electoral Council of very limited independence and impartiality, which has not complied with its duty to be transparent and collaborate with all the parties. The double standards used in accrediting the national observation groups, the difficulties experienced by the opposition in accrediting their monitors and the absolute power in the Voting Centers of some coordinators named at the last moment to a position not contemplated by law and not subject to party monitoring, represent serious limitations on transparency and notably reduce the capacity to verify the fundamental phases of the process, including the summing up of the results in the computing centers.”

And here is Ethics & Transparency’s appraisal of the 2008 municipal elections: “This qualitative assessment is categorical in stating the conditions of systematic fraud and extremely serious violations of transparency and of the guarantees of reliable [ballot] counting in almost all municipalities of the country, a bias that favored the governing party by design, distorting the popular will in approximately 40 municipalities.” This organization uses 4 categories with 18 indicators to analyze an election both nationally and internationally. After analyzing the 2011 general elections, it concluded that 17 of those indicators were violated. The outrages committed by the CSE were so numerous it would take dozens of pages to enumerate them. [See the article by Ethics & Transparency in the November 2011 issue of envoi for precisely that detailed analysis].

Did Ortega have to dialogue with Almagro?


Fraud was evident in both the 2008 municipal elections and the 2011 and 2016 general elections, and there were serious irregularities in the 2014 Caribbean regional autonomous government elections and the 2012 municipal elections. In other words, we haven’t had an election we could consider basically free in our country since 2006. It’s very important to keep this in mind as the backdrop for understanding the moment at which Daniel Ortega decided to sit down with OAS Secretary General Luis Almagro to hammer out some agreements in a “constructive dialogue.”

Did he have to? President Ortega made the decision after receiving a report on Nicaragua’s electoral situation last October from the General Secretariat, the OAS executive body Almagro chairs. That as yet unpublished report and the US House of Representatives’ approval of the Nica Act the previous month are what pressured Ortega to initiate the dialogue with Almagro.

What has been the result to date?


The talks went on for three months, culminating on January 20 of this year with the publication of a first document. That text, signed by Almagro and Nicaraguan Foreign Minister Denis Moncada Colindres, describes the basic agreement as follows: “Continue strengthening the political plurality and the system of political parties to stimulate the process of perfecting democracy in Nicaragua.” With one brushstroke the OAS eliminated any mention of the previous electoral frauds, focusing instead on “strengthening” and “perfecting” what its dialogue counterpart has destroyed. The OAS Secretary General pledged to observe the November 2017 municipal elections, provide technical support to clean the electoral rolls—a task that will take at least two years—and seek financing from international cooperation to develop these tasks.

The most substantive and interesting part of the agreement is what the report calls “strengthening electoral institutionality according to regional standards”—i.e. standards defined by the OAS. It was agreed that the following 14 topics would be reviewed to strengthen electoral (not political) institutionality: “1) universal and fair voting; 2) inscription in the civil registry; 3) the electoral registry; 4) access to voting centers; 5) the issuing of the vote; 6) the integrity of voters’ preferences; 7) the exact recording of voters’ preferences; 8) the right to run for public office; 9) equality in security; 10) equal opportunities in areas such as political party financing; 11) the right to freedom of press and information; 12) freedom of association, assembly, expression and movement; 13) the frequency of regular elections for elective office; and 14) the irreversibility of electoral results.”

The OAS considers any county that fails in even 2 of these areas should not be considered democratic, so by merely enumerating all 14, the OAS is implicitly telling us that the elections held in Nicaragua in recent years have fulfilled none of them. According to the agreement, reviewing them will be the object of an OAS “cooperation mission” during a minimum of three years in Nicaragua.

The OAS wants to review a reality we already know only too well. We are all aware of the lack of equal opportunities, of restricted demonstrations, of the manipulation of voters’ preferences… We all know the electoral results in our country aren’t irreversible, because we’ve seen how certain results given at one moment in dozens of municipalities are completely changes just hours later…

The January 20 report announced that a Memorandum of Understanding would be forthcoming by February 28 with more specific details. But it added virtually nothing and in fact said less; while it again speaks of electoral institutional strengthening, it no longer details the 14 points to be reviewed. The memorandum text was accompanied by two other documents. One establishes the type of relationship the OAS General Secretariat will have with the Supreme Electoral Council, while the other contains government promises to guarantee diplomatic immunity, freedom of movement and the like for the OAS electoral observers who will come for November’s municipal elections…

These guarantees are important, because the government didn’t respect the OAS observation mission in the 2011 elections. On voting day itself, mission head Dante Caputo charged that the government had “covered the radar” so they couldn’t objectively evaluate the electoral process.

It needs to be recalled that, despite that violation of observers’ rights, the final OAS report that year was ambiguous. The OAS Secretary General at the time, José Miguel Insulza, even legitimated the elections, leading the Carter Center to comment that the European Union’s electoral observers had displaced those of the OAS in their monitoring work not only in Nicaragua but all over Latin America.

A closer look at the main contents


Let’s analyze the main contents of the agreements more deeply. First of all, like many other people I know, I didn’t expect much from the OAS, but I think it has given us even less than we expected. At the same time, I wonder whether there would have been any agreement at all had Almagro been more demanding with Daniel Ortega. I’m inclined to believe nothing would have come of the talks, which would have been negative both for the government and for Nicaragua.

We expected more because we believed Almagro was coming to Nicaragua with a receptive attitude. He reportedly told those who had spoken to him in Washington that he felt linked to the country because some of his Uruguayan comrades had fought and died in Nicaragua’s insurrection, so he wanted to work to improve things here. We don’t know exactly what that means in practice. I think we’ll have to wait and see how the agreement continues playing out and what Almagro’s strategy is.

We only know for now that what they agreed to and signed is clearly very limited. One limitation is that the agreement raises the problems of Nicaragua’s electoral institution as if they were minor and could be resolved with a series of technical adjustments. But that’s not the case. The problem with our electoral system is extremely serious. The Supreme Electoral Council, which is totally dependent on the executive branch, has no legitimacy. It’s a spurious, tainted, totally degraded institution and it beggars belief that the OAS has agreed to come in only a few more months to observe elections organized and run by that institution, and under the same conditions it has imposed since 2006.

The details of the cooperation mission’s tasks aren’t yet defined


While the 14 issues listed in the agreement are all technical, it must be admitted that a true review resulting in substantive changes in them would resolve many of the Supreme Electoral Council’s current problems… admittedly just in the electoral system, not the political one. It would take intense work to review and improve their implementation, but doing so would represent major progress.
According to the agreement, that task will correspond to a cooperation mission the OAS has agreed to set up in Nicaragua for “at least the next three years,” according to Almagro’s final words in a brief video communique issued on March 16. In it, he announced that “next we will define the details of the mission, including its objectives, the areas of responsibility of both the government and the OAS, the activities and work plan that will be developed, its budget and human and material resources, and how progress will be monitored and evaluated.”

Will there be enough financing?


The issue of financial resources will be pivotal to the support provided by both the OAS municipal election observer mission and its more long-term cooperation mission. How many observers will be able to come for the municipal elections? I’ve heard people related to the OAS say that in a presidential election it’s enough to do a rapid count in a sample of 47 well-selected voting tables to predict who will win. But those coming to observe in November can’t base their work on that parameter as it isn’t a single election; there are 153 separate elections.

What resources will be available to finance the observation mission, and even more complex, what resources can a mission installed in our country for three years count on? Generally the United States pays for this kind of activity. The US and Canada provide over half of the OAS’ general financing, with Mexico and Brazil also contributing, though to a lesser degree. The other countries are basically along for the ride.

Guaranteed conditions or postponed elections?


Seeing how crucial the OAS’ financial challenge will be, a group of people in Nicaragua is organizing to propose to the donors that they finance its tasks in Nicaragua only if the government provides conditions that would give us genuine guarantees. I frankly believe proper elections in November would be impossible under today’s conditions, so if the idea of this cooperation mission actually goes forward, I think the government shouldn’t be asked for guarantees, but rather for postponement of the elections for at least a year.

As the OAS has been lax in demanding requisites from the government, the donors will have to get the OAS to push the government for them, making the financing of its work dependent on those requirements. Will it be possible to get this? I think that if the United States has already clearly backed Almagro in the Venezuelan case, it may also want to do so in Nicaragua’s.

The issue of defections is just a red herring


The agreement between Ortega and Almagro only touches on one issue related to the crisis in the country’s political institutionality: political defections. It proposes that the OAS provide technical assistance so the branches of State can correctly interpret the reform to Article 131 of the Nicaraguan Constitution. This reform allows political parties to throw out legislators elected on their ticket who change party affiliation during the term to which they were elected on the grounds that they are “defectors.”

At the theoretical level, the late Italian philosopher of law and political sciences Norberto Bobbio, who I believe has most deeply analyzed the issue of political representation in our Latino world, referred to this in his book The Future of Democracy, in which he explored what he called the “six broken promises of democracy.” He explained that the issue of political representation was resolved in France’s National Assembly in 1791, two years after the French Revolution. It was initially thought that the Assembly members represented a particular social or political group. So if the member was a laborer, he represented labor; if he was a cleric, he represented the clergy; and if he was an intellectual, he represented the intelligentsia. The Assembly held a debate that resolved that its members—whom we would now call representatives or parliamentarians—represented the entire nation, not just one sector, and thus could not be dismissed. Except in the Soviet Union, where representatives could be removed if they didn’t obey the party, the issue has remained clearly established throughout the Western world as the French revolutionaries interpreted it: once elected, representatives receive a mandate to represent the nation as a whole, and thus can differ with the party that ran them as a candidate without risking being thrown out.

Both the January OAS-government agreement and the February follow-up memorandum of understanding mention defections and how the regulation on them is to be interpreted as if this were a central theme of Nicaragua’s political institutionality. But defections are not the core problem, nor should the OAS task be to teach Nicaragua’s justices how to interpret the law on it. It’s a secondary issue at best, a red herring introduced to distract from the real fundamental political issue: how we elect the authorities that govern us and which, after so many years of electoral authoritarianism, are at the service of a single person. In short, it’s a question of the structuring of the branches of State and the absolute control the President exercises over them all.

While that control includes the electoral branch, the larger problem is his control of the judicial branch, particularly the Supreme Court. And here we’re up against a genuine Gordian knot, because there’s no way to reform either the electoral or the judicial branch if we can’t touch the legislative branch. How can we possibly clean up those two branches without renewing the legislative branch, whose representatives confirm the choice of Supreme Court justices and Supreme Electoral Council magistrates? And who elects the legislative representatives who approve the heads of those other two branches? President Ortega not only chooses his own party’s legislative candidates, but this year he also designated those from the other parties. As a result, virtually all parliamentarians now sitting in the National Assembly are beholden to the governing party. Moreover, the CSE magistrates and Supreme Court justices nominated by the President and confirmed by those legislative representatives will never oppose a presidential resolution.

The difficulty of getting an ID-voter card…


Although it’s possible to touch on the contents of the 14 points that must be reviewed to improve electoral institutionality before the elections, actually resolving them in the coming months would be impossible. That’s why I believe the best thing would be to postpone the elections and begin reviewing some of these very complex points in order to create better conditions for the elections when they are held.

Just one example of the complexity involved is the issue of electoral registration and inscription in the civil registry. It isn’t remotely easy to resolve because dozens of communities in Nicaragua’s Caribbean region and many other rural zones don’t even have a registry office, so many people don’t have ID-voter cards and have never even had their birth registered. Some surveys tell us that 90% of the population now has its ID-voter card, but that’s simply not true, as neither children nor adults have ever been recorded in many areas and many people don’t even know their own age…

…and of running for public office


Another issue is running for public office. It is assumed that no one can interfere with that right. But with changes made to the Electoral Law in 2000, fruit of the pact between Daniel Ortega and Arnoldo Alemán, the concept of popular petition candidates was eliminated. Aspirants to public office are now limited to running only if a political party puts them on its slate, which of course involves accepting the conditions that party sets. That logic has to be changed back.

Isn’t the OAS just legitimizing a corrupted electoral process?


It’s very worrying to me that in November Nicaragua will be holding yet another election with the same Supreme Electoral Council magistrates we’ve had for more than 10 years. More worrying still are the people who tell me that participating in those elections is the right thing to do because the OAS’ observation will finally provide good conditions. In my view the worst thing isn’t the conditions because the current CSE inherited good conditions for holding honest and transparent elections, yet has never had the will to employ them.

Regulations on political rights are written into the United Nations Universal Declaration of Human Rights, while the OAS also has regulations stating that it cannot observe a questioned electoral process if its presence would contribute to legitimizing it. Since a large part of Nicaragua’s citizenry already considers our electoral process corrupted, the OAS’ presence would legitimize it, so theoretically it shouldn’t come here. The problem is that several parties have already said they’re going to run in these elections, which obscures the vices of this process and our appalling political context. We know they are mere façade parties, but they’re legal and are playing inside the system. Worse yet, the Independent Liberal Party (PLI), which placed second in the 2011 presidential elections before having its legal status and even its elected representatives arbitrarily snatched away on Ortega’s orders, utterly undermining the legitimacy of the November 6, 2016 elections, has already announced it will run in the municipal elections with a new legal status under a new name: Citizens for Liberty…

Some say only two things are needed to legitimize November’s elections: the participation of the country’s second political force, excluded a year ago; and OAS observation. But is that really enough to do anything more than permit the CSE to organize a new masquerade?

How are we supposed to make sense of the fact that those politicians from the second force who were stripped of everything, including the right of their legislators elected in 2011 to complete their term, are now willing to participate? And that they will do so with the very same scheme we all know is designed to avoid risking even an iota of the present power monopoly, in which they could again lose everything, or might win something at the cost of legitimizing such a flawed scheme?

Are they really only running candidates because the OAS will be here? Won’t the OAS presence just legitimize elections that would be unacceptable in any half-decent country given the CSE’s history of repeated outrages? What will the actual results of elections held in that situation be? We already know: we’ll witness yet another election with a perverted electoral system, blessed by the OAS, in which the FSLN will again win the majority of mayoral seats, even in historically solid Liberal municipalities, divvying up some of them to the parties that helped legitimize the race through their participation.

And afterward?


Will there be elections? And if there are, what will happen afterward? What will the cooperation mission do… or not do? It’s quite possible that it won’t do anything because the memorandum of understanding left it clear that either of the parties could abandon the agreement at any point. It won’t be all that easy for the Nicaraguan government to slither out of the agreement because it would be a clear demonstration of its lack of political will but we can be sure it will get out of whatever commitments it possibly can… With governments like those of Violeta Chamorro, Arnoldo Alemán or Enrique Bolaños, it was possible to win spaces little by little, which the FSLN adeptly did. But there isn’t even wiggle room with this government. If in the best of cases the OAS makes some major steps forward, I have no doubt that the day after it packs up and leaves, everything that was signed will start to be rolled back…

I don’t believe the CSE will provide any guarantee for the November elections, but I do believe political leaders must always look for and exploit chinks in the political system. In practice abstaining amounts to admitting we don’t have the capacity to do anything. It means crossing our arms and declaring ourselves incapable. I think that if a party could choose candidates in some of the larger municipalities we could all identify with, it would be interesting to go vote, to engage in that struggle… The problem is whether such candidates exist. Right now I don’t see any clear path ahead…

In the end, what can we expect from the agreements between Daniel Ortega and Luis Almagro? Neither man is a fool, so each has his tactics and strategy. Almagro is aware of everything that’s happening in Nicaragua and had to concede a lot to achieve something. Ortega accepted that three-year package, which could be stretched to five, so he could finish his term calmly then turn over the helm to one of his own. He has signed agreements, but has no interest in changing anything. Almagro is well aware of that and is consolidating a diplomatic mechanism to corner Daniel Ortega and oblige him to make concessions. But will he achieve that?

We’re the ones who have to change things


In the end, we Nicaraguans must resolve to transform our country, renew the leaderships, take to the streets to demand the transformation of the electoral system that has been imposed on us, demand honesty from our politicians…

We don’t need the OAS to do that. There’s more than enough knowledge right here in Nicaragua to review and provide responses to the 14 points listed in the agreements plus much more. The problem is that there’s no will to resolve these things in either the government or much of our political class. The transformation we need requires consensus and patriotism. But let’s not be so naïve as to think that consensus and patriotism alone will be enough to transform the electoral system, much less the political system as a whole. The task is a very long one. And as society itself is a system, the transformation has to be comprehensive and touch all aspects, including the electoral, juridical, political, economic and cultural ones. And we also need a moral transformation. The question is, will we achieve all that?




José Antonio Peraza is a Nicaraguan political scientist who specializes in electoral issues.

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