European Union: A lack of neutrality and transparency
The following is the preliminary report of
the EU Electoral Observation Mission,
presented in Managua on November 8,
and its Declaration on the Vote Totaling Process
and Publication of Results,* released on November 17.
Its final report will be presented in January or February 2012.
The European Union (EU) Electoral Observation Mission arrived in Nicaragua on October 12 and soon spread out across the country. Led by socialist European Parliament member Luis Yáñez Barnueva-Garcia, the group of 90 long-term observers came from Spain, Norway, Switzerland and Canada. They were governed by the Declaration of Principles for International Election Observation, adopted under the auspices of the United Nations in October 2005 and signed by Nicaragua. Over the course of election day, the EU observers visited 559 polling stations throughout the country
*Both documents are unofficial envío team translations, with subtitles also added by envío..
The Preliminary Report November 8, 2011
The CSE’s double standardsThe 2011 electoral process has passed in a generally peaceful way so far. But 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 (CVs) 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.
Only 63% of the voting juntas positive Election day passed relatively calmly, with isolated incidents in several of the country’s departments. The European Union Electoral Observation Mission positively evaluated the voting phase in 85% of the 559 vote reception juntas (JRVs) observed. Nonetheless, the EU Mission states with concern that only 63% of the juntas observed merited a positive appraisal in the counting phase, in some cases due to discriminatory annulment decisions in favor of the FSLN.
A partial and hardly independent CSEThe Supreme Electoral Council (CSE) displayed good organizational capacity, but gave repeated demonstrations of partiality and scant independence. That was particularly visible in the mono-color composition of the territorial Electoral Councils and the Vote Reception Juntas (JRVs), the late and reluctant accreditation of opposition monitors, and the opaqueness of many of their decisions.
The CSE restricted the rights of the national observers, refusing to accredit two organizations critical of the management of the process and issuing very restrictive regulations for “accompaniment,” which dissuaded certain organizations from participating and reduced the trans¬parency of the electoral process.
The CSE has still not resolved its persistent failure to purge the electoral roll, which was aggravated by the brevity of the verification and correction process for registered voters.
Widespread problem with voter/ID cards
The EU Mission has verified, without being able to quantify, a widespread problem with the issuing of voter/ID cards, whose distribution has in many cases been left in the hands of FSLN cadres and members of the Councils of Citizens’ Power (CPCs).
Excessive CSE interference in The legal framework provides a sufficient basis for holding democratic elections, but allows the CSE excessive interference in the internal life of the parties and does not establish control mechanisms for campaign financing.
the life of the political parties
In contrast with the quick ruling on the constitutionality of a new candidacy by President Daniel Ortega, the Supreme Court of Justice has still not issued a decision on the inhibition of PLI Alliance candidates, maintaining an unjustified uncertainty over that coalition’s elected representatives.
The CSE lacks clear procedures The CSE did not use its broad regulatory power to detail and clarify procedures of such importance as voting, counting and challenging, which are scantly regulated in the Electoral Law.
The campaign was not very substantial The election campaign was peaceful, but not very substantial or informative. The governing party made use of public resources to benefit its party campaigns, as did the PLC to a much lesser degree and only on the departmental level.
State media did not informThe media freely expressed themselves during the electoral campaign, but radio and television stations, particularly those owned by the state, did not comply with the good international practice of informing with impartiality and objectivity so that voters could cast an educated vote.
The political parties did not comply with the national electoral legislation on media issues, compromising the equality of opportunities for candidates, and the CSE did not use its powers to stop this or impose sanctions.
Few women candidates The proportion of women candidates has been very low, making it advisable to adopt legal reforms to correct this marked imbalance.
Unheeded recommendationsThe EU Mission laments the deterioration observed with respect to transparency compared to the 2006 elections and verifies that the recommendations issued by previous missions, aimed at strengthening the CSE’s neutrality and independence, have not been implemented. The EU Mission is continuing to observe the summing up of the physical tally sheets as well as the phase of challenging results and will remain in the country until the conclusion of the process.
The Legal Framework
Important gaps and deficienciesThe main standards that have regulated the general elections and elections for the Central American Parliament in 2011 are the 1987 Constitution, the Electoral Law of 2000 and the Citizens’ Identification Law of 1993. Using its regulatory powers, the CSE has also issued a small number of ad hoc regulations. This framework, the legislation of which has not varied since 2001, is a sufficient basis for holding democratic elections, although it does contain a series of important gaps and deficiencies, particularly regarding political parties, which were already pointed out in the EU Mission reports of 2001 and 2006 and have not been corrected since.
The CSE’s excessive power over the partiesRegulation of political parties is not the subject of a specific law, but rather of partial regulation in the Electoral Law. The excessive involvement in the life of the political organizations conceded to the CSE stands out in that law, turning it into an arbitrator of the parties’ internal discrepancies on questions as relevant as their legal representation, their legal status, or the legitimacy of the constitution of their bodies, spheres also regulated by the law in an ambiguous way. This excessive power has served in the past—and in this recent process—to weaken the parties’ autonomy, the fundamental guarantee of political pluralism, by removing from their sphere of exclusive sovereignty decisions that can have a major impact on the continuity of their structures, memberships and political projects. This problem is unquestionably aggravated in a context in which the independence and neutrality of the CSE are seriously questioned.
Moreover, the Electoral Law designs a very restrictive framework for the birth and survival of political parties. This is reflected in the demanding requisites for the creation of new parties, the extinction of all parties that do not attain 4% of the votes, the prohibition of independent candidacies, the obligation of regional parties to run in coalition with other parties in general elections and, especially, the ambiguity of the stipulations regarding the parties’ legal representation.
The CSE’s restrictions on “accompaniers”The Electoral Law, which has very few details regarding electoral proceedings, grants the CSE broad regulatory powers, of which it has made limited use, despite the need for regulations on challenges and a detailed manual on electoral operations for the JRVs. Even though the Electoral Law itself refers exclusively to electoral observation, the CSE did issue regulations on electoral accompaniment, which imposes restrictions on the accompaniers’ mobility and freedom of expression that did not exist in previous processes.
The Electoral Administration
The CSE’s independence called into questionThe Supreme Electoral Council, established in the Constitution as the fourth branch of State, has a particularly broad mandate, which includes not only administering the electoral process, but also maintaining the civil registry and the registry of political parties.
The CSE has demonstrated a great capacity for logistical and organizational management that has been clear in the process of packing and distributing the electoral materials. Nonetheless, its neutrality and independence have been called into question from the very start of the current electoral process, largely because its seven magistrates are the same ones that managed the 2008 municipal elections due to a presidential decree extending their mandate given the Assembly’s failure to renew the CSE. This extension, which is not in line with the Constitution, increased the perception of a CSE aligned with the governing party. The CSE’s composition at its lower levels, whose limited pluralism has been observed by the EU Mission, has helped increase that perception.
Almost total marginalization The Electoral Law clearly stipulates that two of the three members of each departmental and municipal Electoral Council and of each JRV must be designated by the two parties that obtained the best results in the previous general elections. For that reason such positions correspond to representatives of the FSLN and of the ALN, a now electorally marginal force whose legal representation by Eduardo Montealegre, its candidate in 2006 and today a promoter of the PLI Alliance, was withdrawn by the CSE.
of the PLI Alliance
The Law further establishes that the third position in the different electoral bodies is to be distributed among the remaining parties participating in the elections. This stipulation, which is very vaguely formulated, has not been translated into equal distribution among the three remaining political forces, but rather into the almost total margin¬alization of the PLI Alliance. Reports from EU Mission observers reflect an absolute predominance of the FSLN to the detriment of the opposition parties in the departmental and municipal councils, achieved in a significant number of cases through supplanting, arbitrary refusals and even intimidation to force resignations. This pattern has been reproduced in the make-up of the JRVs, whose creation was also moved forward with less than 24 hours notice, reinforcing the opposition’s marginalization in a kind of electoral administration designed to make political pluralism the main guarantee of its neutrality and basis of its credibility.
Unequal competition without clear regulationsTo the detriment of transparency and juridical security, the CSE decided not to issue regulations on the procedures for key issues in the electoral process, such as voter registration, exercise of the right to vote and the ballot count. Communication with the parties was also limited, and for some was difficult, as revealed by the failure to disseminate the models of the different documents until a week before the elections, or by the creation without prior notice of the position of Voting Center Coordinator. As a whole, this lack of transparency forced the opposition political parties to invest disproportionate resources to obtain information and obliged them to prepare to deal with unknown procedures, generating a situation of unequal competition among electoral contenders.
The CSE undermined the monitoring, Now looking at the issue of party monitoring of the voting operations, the CSE opted to introduce a new monitor accrediting procedure, which was more administrative and cumbersome than in the past and whose application made it slower and more complicated for the PLI to obtain its monitor accreditations, resulting in the party obtaining many of the credentials late and sometimes with errors, in turn making their distribution difficult and contributing to limiting their deployment of monitors on election day. The principle of monitoring is a cornerstone of transparency and as such cannot be undermined for technical or any other reasons, just as naming monitors is an exclusive prerogative of the parties, not the CSE. By virtue of its broad regulatory and organizational powers, the CSE had all the resources necessary to comply with the obligation to accredit the monitors of all parties in a simple and timely way, as it did in previous elections.
the cornerstone of transparency
The Electoral Roll
An uncleaned electoral roll The definitive electoral roll in these elections contained 4,320,094 names, of which the CSE estimates that only around 3.4 million are really eligible voters. The failure to purge the roll is a problem that has gone on in Nicaragua since earlier processes and unfortunately has not yet been effectively addressed. Citizens were only given a two-day period this time to verify their registration and request corrections. For its part, the CSE provided one copy of the National Electoral Roll to all political parties and only on October 6.
Lack of ID/voter cards Numerous times during the electoral campaign opposition parties and civil society organizations accused the CSE of deliberately failing to distribute to opposition sympathizers their citizen identity card or supplementary document, which are essential to being allowed to exercise their suffrage. For its part, the CSE has recognized the existence of no more than 30,000 voter/ID cards that were not given out, mainly due to the cardholders’ disinterest in going to pick them up. The EU Mission has verified that a real problem does exist in processing and handing out the cards, although it has been unable to establish any reliable estimate of the dimension of this problem. What has been observed, however, are cases in which the cards were distributed both by certain CPCs and by local FSLN leaders.
The Nomination of Candidates
Ortega’s candidacyPresident Daniel Ortega’s candidacy was endorsed by the Constitutional Bench of the Supreme Court of Justice (CSJ) following a process initiated and resolved in only four days. The CSJ decided to declare as non-applicable article 147 of the Constitution, which unequivocally prohibits the immediate reelection of an incumbent President, on the grounds that it jeopardizes the principle of equality established in the same constitutional text. Although the opposition parties did not accept the ruling, they decided to run candidates. Without assessing the CSJ ruling, the EU Mission considers that in accordance with the Nicaraguan system, the only channel for making constitutional reforms should be the majority National Assembly vote envisaged in the Constitution itself.
The risk of inhibiting The EU Mission is concerned about the risk of inhibition hanging over the elected representatives of the PLI Alliance as a result of three suits filed by unofficial factions of that party questioning the legitimacy of the legal representative of the coalition that presented the candidacies. In contrast to the speed with which President Ortega’s suit was resolved, the CSE has yet to rule on this issue, which is exclusively and in the last instance incumbent on the CSE, which by express resolution has already confirmed the legality of the PLI candidacies.
PLI National Assembly candidates
The Electoral Campaign
No debates, just emotional slogansGenerally speaking, the election campaign was peaceful. Candidates and sympathizers enjoyed a high degree of freedom of expression, movement and assembly despite sporadic confrontations between followers of rival parties. In an atmosphere marked by profound polarization and distrust, the opposition questioned the legitimacy of the elections, considering Ortega’s candidacy to be illegal and criticizing the CSE’s lack of independence, but it nonetheless decided to participate in the process.
The presidential elections dominated the political scene during the campaign. No debates were held among the presidential candidates. Rather than political discussions of substance, Nicaraguans witnessed an insistent repetition of emotional slogans and promises. As a result, voters did not have enough information on the political positions of the different candidates, particularly those for the National Assembly and Central American Parliament.
The FSLN’s widespread and The EU Mission observed widespread, systematic abuse of public resources for party campaigning, a practice prohibited by article 107 of the Electoral Law. In most cases the abuse was committed by the FSLN, although the PLC also engaged in such practices in the departments of Nueva Segovia and Estelí, and in the South Atlantic Autonomous Region (RAAS).
systematic abuse of public resources
The practices of abuse of public resources were similar throughout the country, and consisted mainly of using official spaces, public institutions and vehicles. Numerous electoral events involved the participation of public employees and even children during hours when they should have been in school. By inaugurating public works for proselytizing purposes, the national government confused the boundary between its official functions and the FSLN campaign, contradicting international good practices in electoral matters. The Councils of Citizens’ Power (CPCs), created by presidential decree, were very actively at the service of the FSLN campaign, organizing events with voters who used public goods and services.
Evident unequal access to economic resources The unequal access to economic resources was evident throughout the campaign. This was largely due to the fact that funding is barely regulated in Nicaragua: there are no limits on the amounts of donations or spending and very few restrictions related to the origin of the income. The law and its practical application have weak auditing and transparency requirements. For future elections the EU Mission recommends the introduction of reliable and transparent mechanisms to record, disseminate and audit the donations made to political parties and to determine their spending.
The FSLN had more female candidatesThe fact that all five presidential candidates were men and only 23 women were in first position on the five candidate slates for the 90-member National Assembly shows the clear need for reforms designed to achieve greater equality between men and women regarding their possibilities of being elected. It should be highlighted that the alliance headed by the FSLN distinguished itself positively in comparison to its rivals for its number of women candidates.
Unrestricted freedom of expression The EU Mission’s monitoring of 4 daily newspapers, 4 radio stations and 6 television channels, all national, between October 19 and November 2, 2011, showed that the media were able to report on the different electoral proposals, in many cases using very critical language aimed at the candidates or the government, without unreasonable restrictions to their freedom of expression. However, the monitoring also reveals that many of the rules for the media during the electoral campaign, including those aimed at guaranteeing equal opportunities for the candidates, were violated with no consequences for the offenders.
Inequitable propaganda Article 90 of the Electoral Law, which establishes the limits for electoral propaganda in the media, was unanimously ignored by the parties, perhaps because the limits it sets are obviously short: a maximum of three minutes a day on each television channel, four and a half on each radio station, and less than half a page for each candidate per day in the written press. The FSLN has stood out in not complying with the limits, as already highlighted by the EU Mission in 2006, having more publicity than all of its rivals put together in almost all of the media monitored. That has been the case for Channels 2, 4, 6 and 8, Radio Ya and Radio Nicaragua. The exceptions are Radio Corporación, where 94% of the publicity analyzed corresponds to the PLI; Channel 12, where the opposition parties had a combined 55% of the publicity; and Channel 14 and Radio Universi¬dad, which have no electoral propaganda, at least during the hours monitored.
on state TV and radio
In addition, the state media (television’s Channel 6 and Radio Nicaragua) did not provide the 30 minutes on television and 45 on radio that the Electoral Law says the Supreme Electoral Council must guarantee to parties that present candidates. The fact that only one candidate (APRE’s) fruitlessly requested such spaces does not exonerate the CSE from the responsibility attributed to it by law.
Illegal publicity ratesThe Electoral Law also obliges the media to present their publicity rates to the CSE for its approval. This measure guarantees that the rates, which cannot be higher than normal rates, are public and equal for all participants in the elections. However, EU observers asked executives from local media across the country about the matter, and discovered that the vast majority (14 out of 20) imposed rates higher than the commercial ones and 7 out of 20 applied different prices to candidates, in some cases in accord with their political preferences or the advertiser’s resources.
Ortega, Gadea, Jarquín and Alemán harmed In the area of complying with Nicaragua’s electoral rules, the EU Mission considers that broadcasting either anonymous publicity or that promoted by organizations not recognized by the majority of citizens in some cases approaches the prohibition on denigrating, offending or discrediting candidates established in both the Electoral Law and the Regulation on Electoral Ethics. At least Daniel Ortega, Fabio Gadea, Edmundo Jarquín and Arnoldo Alemán were harmed by such propaganda.
by anonymous and denigrating propaganda
Few boundaries between There are no legal regulations obliging the media to report objectively and impartially during the election campaign. International practice, however, is that radio and television in particular, above all those that are state-owned, should try to produce especially balanced electoral coverage of the campaign so that voters can cast an informed vote. Nonetheless, the media monitoring reveals that most of the radio stations and television channels analyzed had a pronounced bias. Channels 4, 6 and 8 and Radios Ya and Nicaragua stand out in this respect, with a pronounced bias in favor of the government and the FSLN, while Radio Corporación stands out for having favored the PLI. The existence of this bias is more problematic in the case of Channel 6 and Radio Nicaragua as both are state owned. Channel 6, in particular, almost completely ignored the opposition parties and eliminated the boundaries between information, opinion and publicity.
information, opinion and publicity
Although Nicaraguan legislation also does not prohibit the dissemination of state publicity during an electoral period, suspending it in the run up to the elections is considered a good practice internationally. However, according to the media monitoring there was more publicity for the government’s public and political works on Channel 8 and Radio Ya than publicity for all other parties taken together, and on Radio Nicaragua, Channel 4 and Channel 6 it was only exceeded by publicity specifically for the FSLN, but not by publicity for all the rest of the parties.
Non-accreditation of national observersAlthough the Electoral Law establishes observation, the CSE arbitrarily refused to accredit two national observer groups of recognized prestige, IPADE and Hagamos Democracia, even though they agreed to submit to the unjustified restrictions that go against the Declaration of Principles for International Election Observation. The Accompaniment Regulations issued by the CSE imposed these restrictions, which limit both the observers’ free circulation and free expression in exercising their functions. Ética y Trans¬parencia, another observation organization with long experience, decided not to submit to the Regulations and did not request accreditation.
a significant flaw in transparency
Full electoral observation not subjected to unreasonable restrictions is an indicator of electoral transparency and as such contributes to voter confidence. The CSE refusal to grant national observers accreditation and complete access to the information and the voting centers is a significant flaw in the transparency of the process. The CSE did, however, accredit two national observation missions, the National Council of Universities and the Center for Human, Citizens’ and Autonomous Rights (CEDEHCA), the latter based in the RAAN and RAAS autonomous regions.
Election day: Opening and Voting
Difficulties with immediate accessThe EU Mission observers attended all phases of the voting in 559 JRVs across the country, which represent 4.3% of the national total. Nonetheless, they did not always have immediate access to the JRVs as the Electoral Police and the Voting Center Coordinators refused to clear their way until they received orders from their hierarchical superiors.
Isolated violent incidentsElection day passed peacefully, with the exception of a few isolated violent incidents, such as those observed in Sébaco, Ciudad Darío and Tuma La Dalia. Voters cast their ballot without major setbacks, given that the JRVs generally had enough members and were provided with the necessary materials.
The PLI had no monitors in There were party monitors from all political parties in most voting centers observed. The FSLN had monitors in all voting centers, the PLI in only 85%. The EU Mission observers documented very few cases in which the presence of PLI and ALN observers was not allowed under the argument that their accreditations were false. Another more widespread observation was that opposition monitors acted passively and were unable to say which party they represented. In the opinion of the EU Mission observers, these monitors were not really opposition party members.
15% of the JRVs observed
Early opening in a third of the JRVs observedThe EU Mission observers evaluated as adequate or good the execution of the opening procedures in most cases, and as bad in 15% of the cases. Generally speaking, these procedures got started at the right time, although in a third of the cases the setting-up process began before the established time of 6am, which in some cases meant that observers and monitors were not in attendance.
Some people were not allowed The observers evaluated the casting of votes as adequate or very good in 85% of the cases observed and bad or very bad in 14%. The lack of a written guide and the limited training of JRV members were reflected in the inconsistent application of certain legal requirements. This was particularly the case of Electoral Law articles 41 and 116, which allow citizens to exercise their vote if they have a voter/ID card certifying that they live in the area corresponding to the JRV, even when they are not on that JRV’s roll. The EU Mission observers reported that in 28% of the JRVs people who should have been allowed to vote in accordance with article 41 were not authorized to do so.
to vote in 28% of the JRVs
Closing of Voting
Bad procedures in a third of the JRVs observedThe EU Mission observers evaluated the counting procedures to be adequate, good or very good in two out of every three cases and bad or very bad in the rest.
1. Unused ballots not counted. Because consistent procedures were not used to count all of the ballots, unused ballots were not counted in at least a third of the JRVs, even though this is established by law.
2. Problems with the single ballot. The EU Mission observers advised of inconsistencies in determining how a vote was meant to have been cast. In some cases the single ballot [for presidential, National Assembly and Central American Parliament elections] presented problems: in one out of five cases all votes on the ballot were declared null, even though not all were.
3. Vote tally sheets not a faithful reflection of the results. In a fifth of the cases, the voter’s intention did not prevail and as a result of such irregularities the tally did not faithfully represent the result. Tallies were handed to all monitors present in the great majority of cases.
Extremely serious limitations for the monitorsWhile the EU Mission considers the publication of the preliminary results by voting center to be positive and trusts that the same criterion will be applied when the definitive official results are published, it views as extremely serious the limitations imposed on monitors from certain parties to attending the summing up of the definitive results at both the municipal and departmental levels.
We will continue observing The EU Mission is continuing to observe the results of the summing-up and will report on this final stage once it has been completed.
Declaration on the Vote Totaling Process and Publication of Results
Managua, November 17, 2011
The CSE is culminating the process of publishing the results in an opaque and arbitrary way. The European Union Electoral Observation Mission (EU EOM) laments that the Nicaraguan electoral authorities’ limited transparency pointed out in the Mission’s Preliminary Declaration of November 8 has been maintained and even deteriorated during the summing-up of the results at the different levels of electoral administration and their subsequent publication.
Monitors and observers hindered The reports from EU EOM observers deployed in the country’s counting centers describe a homogenous standard in almost all departments and regions that is characterized by preventing or hindering the monitors’ access to the operations of summing up the tally sheets from the vote reception juntas (JRVs). The EU EOM itself could only observe those operations, in most cases, in conditions that did not allow clear and documentable verification of the totaling process.
from observing totaling operations
Results only published by Voting CenterThe EU EOM also deplores that, unlike in previous processes, the provisional results have only been published on the Supreme Electoral Council (CSE) webpage by Voting Center (CV) and not disaggregated by JRV. The disaggregated publication of results by JRV allows the parties and the citizenry a simple way to cross reference the published data with the results of the vote tallies of which they have a copy or knowledge. Given the problems many opposition party monitors suffered of accreditation for, access to and permanence in the JRVs, which were already pointed out in the Preliminary Declaration, none of those parties were in a position to obtain a copy of the tallies of all JRVs in many voting centers. This prevented those not in possession of the complete set of tallies from said centers from comparing the data published by the CSE, which was only aggregated by voting center.
Publication date of results arbitrarily moved upTo these difficulties is added the fact that the CSE moved up to Friday November 11 the publication and notifying of the parties of the provisional results, an activity planned for the 22nd in the official CSE calendar, thus drastically limiting the time to prepare appeals for review. This official calendar, which is binding in nature, is approved by the CSE in agreement with the parties and, according to article 4 of the Electoral Law, can only be altered or modified by the CSE due to an act of God or force majeure and always in consultation with the political organizations. As neither the above-mentioned circumstances nor the agreement of the parties happened in this case, the decision to accelerate the publication of the provisional results has an arbitrary nature and deprives the political forces of valuable time for presenting suitably documented appeals for review.
The EU EOM recalls that the main function of the CSE is to lead the electoral processes with neutrality, guaranteeing the highest levels of transparency at all stages. The opacity and arbitrariness observed in the final phase of the 2011 elections, added to the problems of monitor accreditation and the refusal to accredit various groups of national observers with extensive experience amounts to a serious step backwards in the democratic quality of elections in Nicaragua and, in the opinion of the EU EOM, should be corrected in future electoral processes.
The EU EOM, headed by European Parliament member Luis Yáñez,...wants to make public through this note its conclusions on the final stages of the process, which complete those presented in the preliminary declaration. A final report, which will include recommendations for improving electoral processes in Nicaragua, will be presented at the beginning of next year.