Will Ortega make concessions between now and 2021?
Just days before this year’s municipal voting,
this seasoned Nicaraguan electoral observer
assessed how the election has been developing
and what we might expect on election day.
He also speculates on whether we should
expect improvements in the electoral system
between now and the 2021 presidential race…
Nicaraguans have gone to the polls four times since Daniel Ortega took office in January 2007: to elect municipal government officials in 2008 and 2012 and to elect both the President and National Assembly legislators in 2011 and 2016, not to mention two Caribbean Coast autonomous government elections during the same period. All of them have involved alleged and in one case proven fraudulent elements. We are now coming up to the third municipal elections on November 5 with no positive changes with respect to the neutrality and independence of the electoral branch of government, the Supreme Electoral Council (CSE).
The governing party now calls all the shots
The current electoral system, written into law in 2001 with the faulty logic of giving political parties rather than independent professionals the task of refereeing the electoral competition, was taken over nine years ago by today’s governing party. Initially the takeover was only partial, based on blackmail and bribery. From there the CSE has involuted until it now would be better named a Partisan Electoral Committee, made up of 10 magistrates proposed and ratified exclusively by the governing party’s National Assembly bench, which has an absolute majority.
As a result, the system now reflects everything that naturally occurs when a single party administers all key aspects of the elections, deciding everything from the legal elimination of the competition and the improbable vote counts to a refusal to allow qualified independent observers. Seeing no conditions for a clean race in such circumstances, increasing numbers of voters of all political stripes have opted to abstain—an estimated 65-70% in last year’s general elections, when Daniel Ortega won his third straight presidential term.
The presence of an Organization of American States observation mission for this year’s municipal elections and the circumstances under which it was allowed to come—the threat of the US congressional bill known as the Nica Act—produced a certain schizophrenia in the Ortega government with respect to this electoral process. Ortega was torn between once again assuring overwhelmingly favorable results via the poor imitation of elections that now operate by inertia and his desire to get the OAS to write the most positive report possible, which would mean ratcheting down the foulest practices, at least on election day itself.
Unaccredited but skilled grassroots observers
Ética y Transparencia has observed a dozen elections in Nicaragua since 1996. We’ve also accompanied the training of organizations similar to ours in Asia, Africa and Latin America, sharing our observation and electoral lobbying techniques with them. In addition, we’ve been present for elections in some 40 countries, an experience that has enriched our own expertise. Since the 2008 elections, the Ortega government has refused to continue accrediting our observers to witness the entire process in voting centers, including the counting of ballots.
But since we had very favorable conditions with respect to freedom of action and financing in the years prior to that exclusion, we’ve been able capitalize on our constitutional right as citizens to monitor the authorities. Even without accreditation, our observers enter the voting center like any other citizen, but they know what to look for and can establish certain things such as the quality of the ink used to stain a voter’s thumb to prevent voting twice, the presence or absence of opposition party monitors, whether the vote tallies are given to those monitors and if so whether they are legible… in other words all the paraphernalia used on voting day. Observing everything that goes on before the voting, which is so determinant, doesn’t require accreditation. The indicators of how an electoral process ought to be run are pretty simple and allow us to clearly establish its deficiencies, which originate in the biased arbitrage but translate in many ways and into many visible acts from there on out.
The recommendations of past observers
The CSE’s lack of neutrality and independence is mentioned in half a dozen previous national and international observer mission reports, including the European Union, the Carter Center and the OAS itself, and has been underscored with particular force since 2008. The electoral arbiter is only refereeing for one party, and so blatantly that even the general public recognizes it. That vice is fundamental because any genuine electoral process is based on competition. In any clean contest, whether in sports, politics or even a bake-off, neutral arbitrage for all competitors is a sine qua non condition. If the arbiter, or umpire or whatever the person or persons might be called, is biased in favor of one of the participants instead of judging with neutrality and independence, it irremediably sullies the competition and destroys people’s confidence in the results. This is so evident it requires no further discussion.
The first recommendation of the European Union’s 2011 report addressed that very issue: that Nicaragua needed to find a mechanism to establish requisites that would permit the selection of electoral arbiters who would ensure neutrality and independence. Those requisites or criteria are still as minimal as it gets: anyone who is an adult and not a prisoner is eligible. The law permits and even encourages the party in power to install as many of its operators as possible at every level and in every post of the electoral system, from the CSE magistrates all the way down to the members of the voting tables, who then refuse to accept the accreditation of the other parties’ monitors and/or see to it that they aren’t given copies of the vote tallies with the final results.
Of course much of this way of operating is at odds with the Electoral Law, but for an authoritarian government that’s a mere detail that can be worked out in various ways, from a tough attitude to a fallacious argument. I could give dozens of examples, but let’s just look at one: this year the CSE has fine-tuned a new artifice. The law specifies that no party may have more than two of the three people chosen to run each of the Departmental and Municipal Electoral Council offices or voting tables. But, in flagrant violation of that rule, the CSE decided years ago that this doesn’t apply to members of an alliance, thus permitting those structures to have two and even three members of the alliance put together by the FSLN. This year’s new artifice is that all these officials are named prior to the electoral calendar date the CSE established for registering electoral alliances. That little trick “justifies” the FSLN’s own people controlling all the posts, as they “obtained” them a couple of weeks before other parties officially registered their alliance with the governing party.
In addition to that end run around the law, since the 2011 elections the CSE has named a “coordinator” for each voting center even though that position doesn’t appear in the law. In a system in which the polarization between the two main parties could become extreme and street fights might even move into voting centers, it would be useful for the institution to create an administrative position to resolve such confrontations. But that hasn’t been the case since it was created. Moreover, the coordinator is invariably an FSLN loyalist, so the only explanation is that it is more proof of excess institutional control, however redundant it may be when the ruling party already manages every last detail in the electoral process.
Nicaragua is effectively a single-party State
Let’s not forget that the FSLN lost to the opposition in three consecutive presidential elections (1990, 1996 and 2001) and on each occasion it was beaten by a united opposition bloc identifiable under the expressed or implicit slogan of “everybody against the FSLN.” Like many of the countries of the old “iron curtain” in Europe, Nicaragua now has a de facto single party structure where previously it was de jure. These countries have not come even close to closing the abyss between the power, capacity and electoral base of the single party that captured control of the entire State and the other parties born since then. In those Sovietized countries, one still either votes for the hegemonic revolutionary party constructed over decades by the State-party, dismantling all opposition, or one votes against it.
Here in Nicaragua, once citizens have more or less identified the party or alliance they believe could beat the FSLN and gravitated en masse to it, that candidate has defeated the FSLN. But when there is no unity against it, the FSLN is unrivaled. And in recent years, in addition to sullying the electoral competition to assure more steamroller results, the FSLN has used its power in government to great effect and with few scruples to illegalize, divide and shrink the opposition parties. In this year’s municipal elections no legal alliance poses any threat to the FSLN, although there are de facto alliances of “everybody in one ballot slot against the FSLN” in a few municipalities. If there’s a big voter turnout in those municipalities, the FSLN will have to be smart enough to lose if it wants the OAS seal of approval.
What will we look for in these elections?
Losing clean is hard when you’re used to not publishing results, refusing to create vote tallies and so many other anomalies. It isn’t easy for the FSLN officials in 153 municipalities accustomed to holding “black masses” for the past ten years to generously apply the “impeccable electoral liturgy” ex-Ambassador Arturo Cruz called for as a vaccine against sanctions like the Nica Act. It’s also late now, and features as subject to criticism as our mono-stripe CSE aren’t going to vary.
Nor does the dynamic of these elections, in which the influence of each local governing party’s leadership figure is at stake, make it easy for that figure to aid the conversion. Moreover, the FSLN candidates are that person’s friends and relatives, who might need something more than a slap on the back if asked to fold gracefully… In any event, it’s not even known whether the governing party is seriously trying to make a good impression on the OAS, much less whether it could pull it off.
Nonetheless, taking this factor into account in these barely competitive elections on November 5, there could be a genuine race in some 25 small or medium-sized municipalities. It won’t happen in departmental capitals or other large municipalities, but in those where competition is expected, our observers will be looking at whether the voting and the ballot count by an FSLN-dominated authority adhere to the basic guarantees in the Electoral Law. Among many other things we’ll be watching to see if the other parties’ monitors are allowed to do their job; if legible vote tallies are given to them; and whether the results are auditable by voting table rather than all lumped together by voting center, and/or presented to the public only for the municipality as a whole.
In all recent elections, the greatest irregularities have involved the official tally copies that must be given to each party monitor who participated in the ballot count at his/her table. In theory, those tallies reflect the vote count and are used by a party to present complaints about arithmetic differences that could show up in the results. But both the party monitors and the tallies have been systematically sabotaged: monitors typically have to spend a week running around after their credential; are sometimes pushed out of the voting center when it’s time to count the ballots; are often given a copy of the tally that is illegible or contains outright lies and is useless to them for disputing results. Ever since 2008, when we discovered there were more votes than voters according to the CSE’s own data, it has stopped publishing the tally results by voting table, offering only the overall count by the voting center, which in some cases have three or four tables. This denies the utility of the tallies, since only the ones issued by table permit recourse to review and the ability to state concretely which table has discrepancies. Results given only by voting center simply can’t be audited. The OAS is perfectly aware of that, and has noted as much in previous reports. It has even told the CSE in private that this practice must be corrected. Will it be on November 5?
Some see the OAS role as increasing turnout
Whatever the OAS has in mind, its mere presence in these elections is being cast by the opposition as emboldening their voters to turn out: they are confident that its observers guarantee a least a possibility of scandal and the certainty of greater participation. Although it remains to be seen how much effect the observer mission will have, the opposition parties have actually said “The OAS is here: go to the polls; your vote matters!”
I personally think the degree of participation will vary from one municipality to another. In those where there are good candidates and de facto unity, that could be enough to convince voters to participate in a race that isn’t otherwise very attractive even in the best of conditions, since municipal elections invariably draw a smaller turnout than presidential elections. If there was only 30-40% participation in last year’s presidential elections, we can expect even more people to stay home this time in the many municipalities lacking both good candidates and unity.
It also needs to be kept in mind that abstention can play a decisive role in local elections. With the exaggerated number of Municipal Council members each municipality now has, the last one will be decided by no more than 5 or 10 voters in the 40-odd municipalities with small populations, particularly if participation is low. That can be expected to motivate candidates to spend more energy getting out the vote, in hopes of winning those posts.
The value of abstaining or annulling one’s ballot
In recent elections the opposition has variously encouraged voters to stay home or to go and annul their ballot. In Nicaragua a null ballot and abstention are pretty much the same mathematically speaking, and both have the same effect. I’m not sure that not going to vote demonstrates either support for or rejection of the system in our country. Nor am I sure that low participation indices are the system’s Achilles Heel. I think that if one were to ask Ortega, he would say he likes elections with a low turnout as long as abstention is the furthest people go to manifest their discontent. The growing but passive abstention we’ve seen in Nicaragua is so far the greatest manifestation of opposition.
The governing party in the vast majority of autocratic regimes always wants low participation, because it helps it win, particularly if it has a disciplined base, which the FSLN still seems to have. Nothing scares a government that wants to perpetuate itself in power like seeing the streets or voting centers fill up, because when they do it’s almost always with people seeing a light at the end of a tunnel, or who even believe they are turning one on. But unlike taking to the streets, low voter participation doesn’t necessarily either indicate or accelerate a crisis; it only signals that people don’t see the polls as a path to resolving political problems.
As for annulling one’s ballot, some warn against doing so by leaving it unmarked, because others will just mark it the way they want later, but that’s not the way the vote has been stolen in Nicaragua. Whether left blank or spoiled, annulled ballots only become important when their numbers become big enough and negative enough to freak out the governing party. I witnessed an election in Egypt where a broad movement of youths promoted spoiling one’s ballot by drawing a phallic symbol on the face of one of the candidates considered inexpugnable. Of course, those in charge simply counted ballots so marked as being in favor of that candidate, but I sensed that the strategy triggered profound shock among all those in on the counting who believed that their government, their party and their candidate were the favorites. Abstention never achieves that effect because it is more amorphous and pluri-causal. A strategy like the one I saw in Egypt doesn’t stop those with power from manipulating the numbers, but it does jolt them. And those small shock waves to the armature of power are precisely the points through which citizens begin to get a whiff of the possibility that the fruit is riper than they thought.
These elections are onlya blip on the radar for the OAS
I’ve observed elections in other countries as a member of OAS delegations and we often go a month beforehand to “twist the government’s arm” a little. Doing so when there’s still time to fix a few things means the OAS is using that “active observation” to encourage a better electoral process rather than simply observing what happens on election day. But that isn’t the plan for the mission that has come for these municipal elections.
The OAS is aiming to use its presence in these elections to strengthen its negotiating hand so that from here to 2021 Ortega will be obliged to make concessions in line with the three-year agreement signed at the beginning of this year. Its objective is to set up shop for three years to work on cleaning up the electoral system by agreement and thus also have its observers already accredited in advance for the 2021 presidential elections. The idea is that if Ortega decides he doesn’t want the OAS here that year he’ll have to expel it. That’s good enough for the OAS and also for its donors.
Those international stakeholders and the OAS, not to mention a large majority of Nicaraguan citizens, have already given up on these municipal elections. But eight countries are expressing interest in financially contributing to the tasks the OAS has to take on afterward. This tells us that everyone is banking on a peaceful negotiated solution, worked out through credible electoral changes over time that will ideally culminate in the 2021 presidential elections. Hopefully the 2018 autonomous elections in the north and south Caribbean regions will provide an early indicator of what could be achieved for 2021.
I’m thus sure the OAS mission is going to pack up after these elections without speaking out strongly because it has this other agenda. In its final report, the OAS will congratulate the Nicaraguan people for their democratic and peaceful vocation and take special care to be measuredly critical using very technical language. It will repeat aspects pointed out on previous occasions and will sidestep head-on topics such as the quality of the arbiters or the fact that the cumulative pernicious effects of such a mess for so many years make deeper and more urgent reforms necessary. The criticisms in the report will be couched in diplomatic language to soften them. If the vote is respected, the report will talk about that and not about votes never cast due to distrust, even if they represent the majority. As one of life’s little paradoxes, the OAS will less diplomatically explain in private talks with key international stakeholders how Ortega’s arm can be twisted with active patience but not with stridence. Personally, I’m not sure if patience will work either, but it’s amply demonstrated that stridence won’t. Putting pressure on Ortega is something other actors might do, but not the OAS.
These elections may get a passing or failing grade, or most likely something in between, but that doesn’t matter much. The abysmal record of Nicaragua’s electoral system, in which the only debate in four consecutive elections has been whether they were farces or frauds, has already determined the need for profound reforms, which have to start with a change to neutral authorities. Making this year’s elections better than those previous ones doesn’t resolve the underlying rot because the current Supreme Electoral Council will continue having those frauds on its record. Like so many other things in life, once the credibility required of electoral institutions in any country is lost, it’s lost forever.
What concessions might Ortega seriously consider?
The most immediate and most evident concession Ortega needs to decide on is changing the electoral magistrates, whose term is up in 2019. That will be the first opportunity to measure the depth of Ortega’s volition. I believe it will be limited to changing only some of those top authorities, or perhaps ordering some work on purging the rolls of deceased or emigrated voters, or a couple of other technical items of that nature, but nothing more. Not content to try to change something so nothing really changes, he might even attempt to rethink what is still pending in his dreamed-of electoral design. If he changes magistrates but doesn’t change the system, he’ll have given up a little that could seem like a lot, but he’ll have to give up more if he really wants to put a stop to external threats such as the Nica Act.
I think Ortega understands that he isn’t immune to the empire’s economic sabotage and the multiple and effective means his external enemies have to affect his administration’s economic achievements. But understanding that doesn’t necessarily mean he won’t opt for a route similar to that of Nicolás Maduro in Venezuela, following Tomás Borge’s council not to risk losing power “no matter what it takes.”
What makes Ortega tick?
There’s a phrase, I forget who said it, that the worst kind of tyrant in power is the one who acts for the people’s good. The idea is that he’s worse because that his conscience doesn’t bother him when he does the things he does. Let’s set aside for a moment the issue of whether Ortega is or isn’t a tyrant, since that particular characterization isn’t what validates the phrase. Using his own words, I think the reason Ortega opposes “bourgeois democracy, daughter and mother of colonialism” and sees it as worthless is that he’s convinced he’s doing the right thing.
Why steal elections, paying the price of a high quota of illegitimacy, when it wasn’t necessary because they could be won cleanly? One explanation has to do with Ortega’s historical traumas, particularly in 1990: a clear majority in the polls, full plazas at the end of the campaign, yet the opposition won the next day. Another explanation is that it’s better to have practiced fraud than have to improvise it when needed, as happened in 2008 when its sloppy maneuvers were exposed... But there’s still another explanation for the way Ortega acts: his firm belief that “Western” elections are a mistake. His dismantling of the electoral institutionality is along the lines of Cuba or China, both of which are express referents for him on this issue.
He wants elections where there’s no risk to power even if several parties are running. I include the Rosario factor in his convictions, because the transition from Ortega to his wife has already occurred without us noticing much difference. We can’t even consider what changes might take place when Daniel goes, because to a large degree our new Vice President has been increasingly at the helm for some time now. She’s an enigma and that’s important because in cases like Nicaragua’s, changes within the party are also likely to produce changes to the system. But I don’t really have the grounds for speculation. I only dare express what I intuit, which is that the dynastic Chinese model is totally consistent with the governing couple’s vision of power. Neither Ortega nor Murillo believe that the elections the Inter-American Democratic Charter talks about get them to their goal.
I think we’re very unlikely to see Ortega reverse the path he has taken on electoral issues, although for strategic reasons he needs to appear open to real changes. Because the possibility of opening the way for clean and competitive elections means he wins today but could lose tomorrow, he’ll cling tightly to a system that guarantees he’ll always win. He knows that if he permits a more competitive system, 1990 will eventually come around again: new ideas, new leaders and new financing will emerge that will threaten him. And worse yet, if something out of the control of countries like ours happens, the economy’s current health won’t help him. Ortega knows perfectly well that even if he can safely let the “democratic game” take its course cleanly in these municipal elections, he will surely need to muck up the next ones to guarantee a win.
And what makes the citizenry tick?
From this perspective it is difficult to imagine Ortega doing anything substantive in these three years of negotiations with the OAS that could lead us to competitive and attractive elections in 2021. It’s not currently in fashion to quote old Marxists, but Lenin used to say that a stable government is one that gives its people economic solutions. The 4.7% economic growth we’ve had in recent years under Ortega, touted by the government with as much self-congratulation as 7.4% growth would merit, is indeed generating stability and putting people in the consumer market dynamic, leaving little strength or enthusiasm for unsettling political unrest. Far from having nothing to lose but their chains, workers today could lose their cell phone, their motorcycle, the down payment on the house… The stability we’re observing today in many parts of the world is built on just such goods.
That’s precisely the famous Chinese model: if a government’s economic management seems correct to its citizens, they aren’t going to clamor very forcefully for their intangible rights. Rousseau’s social contract has been replaced by an agreement on global results, with a few nice exceptions. That little economic growth rate number that makes citizens indifferent to politics and their rights varies by country and period, but if the government makes that growth happen, the citizenry shelves any questions and concerns it may have about the deficit in institutional or electoral affairs, focusing instead on the fight for a cut of the gross domestic product. It would appear that Nicaragua is currently in that situation, like almost all countries in the world. In short, it’s very unlikely that things will snowball from from low voter turnout to the street, and from there to political violence with an economy as healthy as the one Nicaragua is enjoying right now.
But will the economy become the kiss of death for Ortega?
In the next three years, if the only issue that could put the government’s future in real crisis is the economy, what are the possibilities of drastically different economic results produced so quickly that they could force someone as convinced of his path as Ortega to accept changes he abhors? We need to look to the North for an answer. As Lenin knew, the electoral battle is won on the economic terrain. Nothing speeds up political falls more quickly than economic ones. If Washington is committed to making Ortega unpopular by bankrupting the country, it will have no compunction about trying to make that happen. But I don’t see enough will for that in Washington. Maduro’s Venezuela has demonstrated that even in unfettered economic freefall, Maduro can continue leading a failed State for an indefinite time.
The Ortega government has already taken measures to avoid problems, quickly contracting numerous loans as if the international lending institutions were going to close tomorrow. It already has US$600 million in approved credits from the very institutions in which the US representatives would have to vote against new Nicaraguan loan requests if the Nica Act is approved. It may not seem like a lot, but Nicaragua already has that amount assured and also has enough credit status to borrow from private sources the US government can’t meddle with. The US already deeply indebted us once and it came out grand for it.
The concessionary credit restrictions may not be the Nica Act’s real threat, however. The most dangerous threat to Nicaragua’s economy is the list the US Dept. of Justice must draw up of Nicaraguans frowned upon for their less than stand-up behavior. What makes this list so threatening is that foreign investment rather than concessionary loans is the real motor of the Nicaraguan economy; and that list of corrupt counterparts is very problematic for foreign investors.
What makes private foreign investors tick?
Very few Nicaraguan capitalists could set up and run a huge operation like Cargill, or even a big shopping mall such as Metrocentro or Galerías. These investments are made by foreign capital invited to Nicaragua by our big business elite. “Come to Nicaragua; I’ll present you to the President so you can shake his hand and feel very safe about your investment. He’ll assure you there are no strikes here, that salaries will remain low, that you won’t have tax pressures, that you’ll sail quickly through all the red tape…” Right now all that’s very attractive. Businesspeople are far less interested in institutions being independent than being predictable and open to influence. But let’s suppose for a minute that Comandante Ortega or other officials who previously represented investment guarantees end up on that list. That handshake could cost them the loss of an entry visa to the United States or to other parts of the world that offer opportunities for their companies. “Do I want to go to Nicaragua if they might take my visa away so I can no longer go to Panama or Costa Rica or so many other places where I have businesses? Do I want a photo of me with someone accused by the United States of corruption or drug-trafficking? No way; there are plenty of other places to do business.”
Such a list raises to infinity the transaction cost of coming to Nicaragua. The splendid relations with the comandante explain why the national and international business class is so content with him, but those relations would fall apart if the contacts suddenly become poisonous, paralyzing the motor of the Nicaraguan economy in a heartbeat. And Washington could always turn the screw a little bit tighter any time it wants.
Preventing these threats from materializing is the only thing I can see that would force Ortega to concede electoral reforms. But beware because, as always, reforms can amount to harakiri. It’s not like Ortega is just going to shrug and say, “Oh well, never mind; I’ll just have to govern in a democracy then.” No, because those reforms would mean accepting the risk of losing power, he’s going to fight every step of the way.
Yet, it’s worse for him to wait for these threats to materialize and take effect, because if he doesn’t make serious electoral reforms until he’s in the midst of an economic crisis, he will be absolutely sure of losing power.
Decades ago, when the country was in war, Ortega went to the Esquipulas regional peace negotiations and the Sapoá talks with the Contra very late, when the economy was on the ropes. About all he had to negotiate with was an election he stood a good chance of losing. He even needed some real luck to return to power nearly 20 years later. Given those precedents, one can’t necessarily expect him to react early to the fragility of the economy he has set up or to the first hard economic blows. One could more likely expect him to cling even more strongly to power.
We can only wait and see how much he has learned from his past. He might surprise us, as he has done by building strong relations with the business elite and other former adversaries during this new decade in government. He could become very audacious and gamble on elections at least as free as those that returned him to power in 2006. It seems evident that Ortega ought to make some bold moves to clean up his act before more international actors align against him. Just as in 1990, the continuation of his model and government by his people paradoxically needs alternation in power, something that’s hard for him to accept.
I personally don’t believe he’ll do it. At best I think he’ll try to manage the situation until he sees a clear sign of synergy and a determination to sabotage him by those who can make him tremble. But by then it will already be too late.
The anti-Ortega gambit of a sector of the US Congress expressed in the Nica Act is quite clear: it is trying to defeat him through the economy, not old-fashioned politics. Those congresspeople have quite rightly calculated that Ortega can only be ousted through a very complicated economic circumstance and they also know that as long as Nicaragua’s gross domestic product stays at 4.7% and rising, Nicaragua will continued to have Ortega and later even his grandchildren running the government. But apart from those die-hard rightwing anti-Ortega congresspeople, I frankly don’t see the commitment, intensity, consensus or urgency in the North to deal Nicaragua’s economy any blows effective enough to do the job before 2021. Nor do I see the Nicaraguan opposition or independents willing to make real sacrifices, much less threaten the economy even enough to weaken Ortega. This is very good news on one level, but regrettably it also encourages Ortega to be less bold than he should be. I very much hope I’m wrong.
Roberto Courtney is the executive director of the Nicaraguan nongovernmental electoral observation organization Grupo Cívico Ética y Transparencia (Ethics and Transparency Civic Group), which is currently heading up Panorama Electoral, a consortium of observation groups and individuals.