The Electoral Law: Another Step toward Institutionalizing the Revolution
“On March 15, 1984, the Council of state approved the final text of the Electoral Law. On March 26, the Government Junta, the executive and co-legislative branch of government, signed the bill, making it the law of the land. This law provides the legal framework for the electoral process. The first result of the law, on April 2, was the appointment of the three people who will head the Supreme Electoral Council. This council, whose members were appointed by the Supreme Court, will have the power of a fourth branch of government and will be the final authority in all electoral matters, including the organization and administration of the steps in the process that will culminate with the November 4 elections.
Lesson from history: The Nicaraguan Electoral Law is an outgrowth of the revolutionary process that the country is experiencing. Within the context of a third world country, this revolution has meant the attempt to recover a national identity and to organize the state so it can satisfy the basic needs of the poor majority. National identity and this logic of the majority were negated by the Conservative and Liberal regimes that controlled the country after its independence in 1821. This negation increased and intensified through the 45 years of the Somocista dictatorship. The revolutionary forces that opposed the dictatorship and finally organized the majority of the population in the insurrectional effort were supported by the emergence of a new national consensus: Somocismo must be abolished in such a way that it will never be able to return. The irreversible termination of Somocismo was a necessary step toward the realization of the people's aspirations for national dignity and social justice.
Other processes, other paces
Nicaragua's regained identity is helping to generate a new plan for society. The clear tendencies toward a more equal society; the active cooperation of thousands of Nicaraguans in such tasks as education, health, defense and production, and the sacrifice with which peasants are defending the country are signs that a new national identity is developing with substantial popular support.
In order to gain further insight into the importance of the Nicaraguan law, it’s helpful to look at other countries in periods of social reconstruction, where the pace of the institutionalization process was slow and adapted to local realities.
In the United States after the revolutionary war of independence, six years passed (1781-87) before any federal representative institution was created; eight years before a President was elected by indirect vote (1781-89); nine years before a bicameral legislature was elected—only partially by popular vote; 15 years (1781-96) before political parties were formed; and 19 years (1781-1800) before a President was elected by popular vote.
Seven years (1910-17) passed following the Mexican Revolution before a Constitution was written, and another ten years, marked by civil war, before the new system was in any way consolidated.
More than three years (1945-48) passed in Germany, destroyed and defeated in World War II, before a Parliamentary Council was formed (though not elected by universal suffrage). A year later, this council adopted a Fundamental Law that has never been ratified by the German people. During the next three years, the allied powers maintained the Statute of Occupation and the Statute of the Department of Ruhr, both of which limited the powers of the federal government.
After the bloodless anti-dictatorial and anti-colonial revolution in Portugal in 1974, the new government took two years before drafting a Constitution and electing a President.
The new Western democratic institutions that emerged in Japan after its defeat in World War II took seven years to develop (1945-52). The 1947 Constitution was approved under the supervision of the US occupation forces and was considered by many to be the work of General MacArthur rather than of Japanese legislators.
A revolutionary struggle brought Algeria its independence in 1962. The following year, a Constitution was approved by referendum. However, two years later, in 1965, this premature Constitution had to be suspended, and a new one was not written until 1976 after a lengthy process of modification of all the penal and civil legislation inherited from the French.
In Angola, US and South African help to counterrevolutionary forces has prevented the holding of constituent and legislative elections during the nine years since independence was won in 1975.
The common thread in the above examples comes from the profound changes, almost always accompanied by war, that caused the emergence of a new or renewed national consensus in these countries. In almost all these cases, the first elections were held after lengthy delays, but they succeeded in ratifying a new consensus so as to prevent a return to previous societal or political structures.
The present electoral institutionalization in Nicaragua cannot allow for the return of the pre-revolutionary system. To do so would be to ignore the pattern of history and trample on the aspirations of the majority of the people.
The fundamental debate regarding elections Political pluralism, a mixed economy and nonaligned foreign policy made up the platform of the new government from the beginning and were a basis for national unity and the formation of the first government junta. The revolutionary context was clear even in this incipient stage of institutionalization.
“This government program… establishes the basis for the New Nicaragua and for a democratic state with social justice; it initiates a revolutionary process that will bring profound changes…”
In article 28 of the Fundamental Statute, the government junta laid the foundation for the election of a National Assembly following the elaboration of a new Electoral Law. This process was to begin as soon as “conditions of national reconstruction permit.”
On August 23, 1980, during the closing ceremonies of the National Literacy Crusade, the FSLN National Directorate repeated its commitment to elections, placing them within the larger framework of Nicaragua’s democratization process:
“Democracy begins in the economic area when social inequalities begin to diminish… not before. Once these objectives have been achieved, attention can be directed to other areas: government is broadened when the people make their influence felt…. In a more developed democracy, it means participation of workers in the management of factories, farms, cooperatives and cultural centers…. Meanwhile, differences of opinion and pluralism will remain essential components of Sandinista democracy.”
On this date, the leaders of the revolution said that the electoral process would begin in January 1984 and that elections would take place in 1985 because the “backwardness and the economic, social and moral destruction of the country (are) so deep and extensive that we cannot hope to achieve reconstruction before 1985.” At that time, elections were defined as an exercise whose purpose was: “to improve revolutionary power but not to vie for the possession of it.” What would not be at stake in the elections was thus stated very clearly—as it is not at stake in any other society—and that is the societal or governmental system.
After these initial statements regarding elections, the topic has emerged on numerous occasions, although sometimes indirectly. At times, it has taken the form of discussions over new plans for society or over participation in the society by various social forces that often have different ideologies but accept the new social-political consensus. At other times, the debate has centered on the creation of a new national unity. The very development of the process has made it clear that some groups could not accept the minimal criteria of the revolutionary society. This was the case, for example, of Alfonso Robelo and the MDN (Nicaraguan Democratic Movement), which today is part of the armed counterrevolution. Occasionally, the discussion has been less strident and has focused on issues such as freedom of expression in the media or legal restrictions brought about by the national emergency.
An important step occurred in August 1983 with the discussion and passage of the Political Parties Law, which gave political parties legal standing for the first time in Nicaragua's history. This law was based on the need to encourage the development of political democracy “legitimately based on popular participation and political pluralism” and entitled all parties to seek political power. The only restriction to their ideological platform is the prohibition of the return of Somocismo or the advocacy of a similar system. The criteria for legitimate political parties are support of “anti-imperialism”; “popular and democratic” membership; “the nation's patriotic unity”; the consolidation of “political, economic and social victories” achieved by the Nicaraguan people; and “defense of the revolution.”
In Nicaragua, political entities opposed to the revolutionary process, be they parties or unions or guild movements, have vacillated in their evaluation of the electoral mechanism. Until December 1983, the Nicaraguan opposition repeatedly demanded that the election date be moved forward. On February 21, Junta Coordinator Daniel Ortega announced that elections would take place on November 4, 1984 to designate a President and a Vice President, as well as a 90-member Assembly that would be both constituent and legislative. Initially caught off balance, these parties soon began to allege insufficient time for organization, the “illegality” of setting up elections for the executive branch and not just a constituent assembly, etc. Despite all this, almost all political groups participated in the discussions of the law long enough to make their points of view clearly known.
Elections are not only a means for institutionalizing the revolution but also a key tool in the ideological debate over the very legitimacy of the process. When it was charged that the revolutionary leaders did not take the elections seriously, the opposition's calls for elections or an earlier electoral date were used to delegitimize the process. When it became evident that elections were going to take place, what was then brought into question was the government's willingness to make the elections a real test through free political expression. This distrust served the same purpose—to delegitimize the process. The Nicaraguan oppositions has not found the way to adjust to the changes brought about by the revolution in which it participated but in which it was not a protagonist and may very well never be.
In the case of the US administration, it is clear that the electoral issue was nothing more than an excuse with which to try to justify the aggression against Nicaragua. One example of this is the statement by Secretary of State George Shultz on February 22: “with or without elections, we will continue our policy of pressuring Nicaragua.”
Principal components of the Electoral Law During the century, six electoral laws have been passed in Nicaragua (1912, 1913,1923,1928,1951 and 1974). Those of 1923 and 1928 were written by US experts and are known in Nicaragua's history as the Dodds Law and McCoy Law. The 1951 and 1974 laws were written to legitimize the Somoza dictatorship in exchange for allowing a certain “opposition” to “control” a third of the Assembly. There are no legal precedents in Nicaragua for the present law.
The new law went into effect in March, more than seven moths before the date scheduled for elections, and at least three months before the campaign will begin. As a point of comparison, the Salvadoran Electoral Law was signed on February 13, 1984, in the midst of an electoral campaign and only six weeks before the March 25 elections.
It is a hollow argument to say that the Electoral Law lacks legitimacy because the Council of State is controlled by the FSLN and organizations supportive of it. On that basis, one could argue that the US Constitution is not valid because it was written by the “founding fathers” during a time in which only those institutions that emerged from the revolutionary process have a voice. One could also argue that the German Fundamental Law is invalid because it was written during the allied occupation. History shows that all revolutions, all changes of systems, begin in the experience of the people and achieve their legitimacy through their own institutionalization.
In the Council of State, the opposition had complete freedom to express its points of view. Outside the Council its positions were widely disseminated in the media at a time when censorship was, for all practical purposes, lifted, in spite of the national emergency law, which remained in effect.
Persons serving prison sentences as well as former officers of Somoza's National Guard or Office of Security still under indictment are not eligible to vote nor are the heads of the armed counterrevolutionary groups that have requested US intervention in Nicaragua, solicited funds from foreign powers for their counterrevolutionary activities, or directed or planned attacks against the people or economy of Nicaragua. Similar restrictions exist in the electoral legislation of other countries. In Italy, the Constitution prohibits “responsible leaders” of the Fascist regime (Article XII), as well as members of the Royal House of Saboya (Article XIII), from voting or running for office. The spirit of the Fundamental Law of Germany is meant to prevent the return of Naziism.
The right to vote has been extended to Nicaraguans who have reached 16 years of age. This change was very controversial. The argument for the change was based on the accelerated maturing process that has occurred in Nicaraguan youth because of the experience of the revolution and their current role in defending their country. The change does not affect parental authority, for it doesn’t change the legal age. Candidates for President and Vice President must be at least 25 years old, whereas candidates for a seat in the National Assembly must be at least 21.
Voter registration is mandatory since it is from the registration list that a census of eligible voters will be made. All citizens will have to register at the polling place closest to their usual place of residence. In France, registration is also obligatory. In Italy, voters have to register in the municipality where they live. Registration will be a duty in Nicaragua, and those who fail to register will be subject to legal penalties; however, voting is a right, and failure to exercise that right will not be penalized.
In a country with an acute lack of accurate statistics or census data, in which a minimally valid voting register never existed, mandatory registration seems indispensable. Criteria such as registration in one's own neighborhood and the policy of posting the lists for at least ten days, in order to facilitate any complaints, will help overcome some of the existing structural limitations. The same logic stipulates that people must vote in the same polling place where they registered. These measures should greatly reduce the exclusion of qualified voters or the incidence of double voting.
Whether or not the military would have the right to vote was another hotly debated issue. Nevertheless, electoral laws in many countries throughout the world, including the United States, grant military personnel the right to vote. Like many other laws, Nicaragua's prohibits members of the military on active duty from running for office and forbids them to enter polling places with firearms.
The establishment of electoral districts has been a serious issue among different political sectors in many countries. In Nicaragua, there will be a national ballot for President and Vice President and a regional ballot for Assembly representatives. The 1982 reorganization of the country into six regions and three special zones will provide the basis for electoral districts. Each region will have the number of representatives that corresponds to the percentage of the population in that region.
The law creates four separate electoral bodies, with two auxiliary bodies. The Supreme Electoral Council, made up of three magistrates and their substitutes, will set up the registration process, determine the exact length of the campaign, resolve formal complaints, register candidates of the various parties and coalitions, and supervise voting. In each electoral district, there will be a local Electoral Council whose duties will include appointing members of the lower electoral bodies, being the first recourse in the case of complaints or appeals, and verifying the regional vote count. In addition, there are Zonal Juntas that, for the most part, coincide with municipal areas. These Juntas will nominate members of the Polling Tables and supervise their activities. Finally the Polling Table Juntas will be in charge of the actual casting of votes and do the preliminary counting. Each registered party is entitled to assign one official observer to each polling table. A police unit will be on duty at each polling place to maintain order during the voting.
Nicaragua's Electoral Law has incorporated elements from various systems around the world. The nation's President and Vice President will be elected by popular vote, much the same way as in the United States. However, the usual US two-party elections do not show how this system works when there’s a significant third-party candidate (as in 1948 with Truman, Dewey, Wallace and Thurmond or in 1968 with Nixon, Humphrey and Wallace). The US has no provision for a second round of voting if one candidate fails to obtain more than 50% of the votes… nor does Nicaragua. Nicaragua's Assembly representatives will be elected by a system of proportional allocation, which is used in numerous countries such as Italy, Spain, Germany and Venezuela. Nicaragua has introduced one variant, which was proposed by the opposition and favors minority parties: The “residual” or “remaining” votes after assigning the full quotients obtained by the parties to the respective candidates on their slate will be counted on a national rather than regional level. This will increase the small parties' chances of winning at least some representation in the Assembly. In systems such as Spain's or Venezuela's, the remaining votes automatically go to the party that has won the majority in the Assembly. Another unique aspect of Nicaragua's elections is that losing candidates for President and/or Vice President have the right by default to occupy the first places on their party's slate of Assembly candidates in the district designated by their party. This amendment was introduced by the FSLN during the debate, explaining that parties normally nominate their most qualified members for the top offices and that, if they lose, they should still be assured a seat in the Assembly that will prepare Nicaragua's new Constitution.
Other amendments also favor minority parties: elimination of the conditions that a party have 5,000 signatures in order to participate in the elections and that a party failing to win at least 3% of the popular vote would lose its legal standing.
The law provides all parties with equal access to state and private media during the campaign. Fifteen minutes per day on the two state television channels and 30 minutes per day on the state radio stations will be allocated for paid political advertising. This time will be divided equally among the participating parties, which must pay the commercial rates. They can use their time daily or accumulate it. Private radio stations must reserve at least 5 and not more than 30 minutes a day for each party. Election publicity may not be broadcast by the two religious radio stations, Radio Católica and Ondas de Luz (Protestant). All types of public demonstrations and rallies may be held during the campaign, although notification of such must be given to the Supreme Electoral Council in order to avoid conflicts with regard to time and place and to provide police security. The Supreme Electoral Council still has to work out the electoral calendar for radio and television advertising, based on advice from the National Assembly of Political Parties. The local Electoral Councils will have to determine the schedule for public rallies. The law forbids advertising that encourages abstention or boycotting.
The state, through the Supreme Electoral Council, will guarantee each participating party or coalition a financial base of six million córdobas for its campaign. Donations, both by national and international persons or organizations, are allowed, although foreign donations must be declared to the Central Bank for the use of foreign exchange. Some countries, such as Spain, prohibit foreign donations. In spite of internal political tensions with international links, foreign donations will be allowed in Nicaragua. Various opposition parties, such as the Social Christians, the Liberal Party, etc. Have international ties.
Several opposition parties have demanded that the entire electoral process and the elections themselves be supervised by foreign officials. This “super-vigilance” reminds the Nicaraguan people of the elections carried out in this country by the occupying US Marines in 1928 and 1932, the latter of which resulted in the installation of the Somoza dynasty and the creation of the National Guard. The Nicaraguan government has announced that it will invite observers from the United Nations, the Contadora countries and the Socialist International, among others. Everyone in Nicaragua, perhaps the government more than anyone else, is aware that international attention will be focused on every detail of the country's electoral process on which will depend, at least in part, the image of legitimacy of the revolutionary state.
It is difficult to touch upon all the items covered during the debate of the Electoral Law. The accompanying table synthesizes the positions of Nicaragua's political parties with respect to the most important and controversial issues.
Although Nicaragua's electoral system meets with international norms in most respects, certain weaknesses leave it open to criticism: the authority the law gives to the Supreme Electoral Council in administrative and all other matters relating to the process, especially in unforeseen eventualities; the fact that the director of the national television system has an advisory position in preparing the calendar of political advertising; the fact that the head of each polling place is in charge of explaining the voting procedure to each voter; the fact that this position is not proscribed to government functionaries, members of the armed services or the police; and finally, the fact that in some cases the recourse for complaints or charges of fraud cannot go beyond the local Electoral Council.
Between aggression and institutionalization It is evident that the FSLN is confident that it will win the elections. Some observers believe that one of the reasons for certain disagreements between the outgoing US Ambassador to Nicaragua, Anthony Quainton, and the State Department was precisely his realistic assessment of the popular support that the Sandinistas enjoy. Nevertheless, any electoral process contains unpredictable elements. The participating social forces will be subject to this unpredictability, which may favor either the opposition or the FSLN. Until now, with the exception of the US administration, international reaction has been favorable to the developments in the Nicaraguan electoral process.
Adolfo Calero, leader of the counterrevolutionary group FDN, stated to the Spanish newspaper, La Vanguardia, that “we cannot hope for more (from Felipe Gonzalez, President of Spain) than signs of sympathy for the Sandinistas… The Socialists say that they support the democratic process, but they insist on closing their eyes to reality.” To those who have followed the situation and are aware of the pressure by the Socialist International countries on the Nicaraguan government to hold elections, these comments seem absurd.
Within many challenges to the electoral process, the intentions of the opposition remain an important unknown. Dr. Jorge Arturo Reyna, a dissident member of the Honduran Liberal Party, told envío that “there is a sector of world opinion and internal opinion for which the only demonstration of fair elections in Nicaragua would be the defeat of the Sandinistas. However, the mainstream of public opinion will make its judgment after closely observing the process.”
One of the most difficult challenges facing this impoverished and war-torn country will be to organize an infrastructure capable of guaranteeing smooth-running elections. If this fails, Nicaragua will run the risk of having to deal with an administrative disaster like the one that just occurred in El Salvador.
Under the UN International Pact of Civil and Political Right, continued military attacks give Nicaragua every right to suspend the elections. In spite of all its problems, Nicaragua remains committed to completing the process it has begun.