2.304.3 OBSERVACION DE FASE DE LA ONDA PORTADORA

The Nicaraguan municipal elections in 2008 present a poignant case study for demonstrating the power of executives to limit actions from regional intergovernmental

organizations in the Americas. Although the United States delegation and Secretary General Jose Miguel Insulza of the OAS tried to address the issue of possible electoral fraud in Nicaragua within the Organization, the Nicaraguan government and President Daniel Ortega’s ambassador at the OAS were able to stymie any in-depth action from the OAS. As a result, the case of Nicaragua demonstrates a key example in which, even when an executive is accused of undemocratic behavior and the evidence provides a strong backing for the accusation, the mechanisms and procedures of the OAS limit the ability of the Organization to respond effectively to presidential overreach. Before demonstrating the limitations of the OAS in

responding to electoral fraud in Nicaragua, it is important to understand the background of the crisis.

In 2008, the Supreme Electoral Council (CSE) of Nicaragua barred international election

observers from observing municipal elections in the country, despite the fact that independent international election observers had been able to monitor every election in the country since

1990. 146 mayorship positions were at stake in the elections on November 9th, including the

mayorship of Managua, the country’s capital and one of the most important local offices in the country. Although international election observers were barred from observing the vote, national observer groups (such as Etica y Transparencia (Ethics and Transparency) and Instituto para el Desarrollo y la Democracia (IPADE-Institute for Development and Democracy)) posted

observers outside of polling centers and compiled evidence that President Daniel Ortega and his party, the Sandinista National Liberation Front (whose members are known as Sandinistas), manipulated the election. The manipulation led to a “victory” for Sandinista candidates in 105 of 146 municipalities, a huge win for Daniel Ortega and his Sandinista party, despite his slumping

popularity ratings.33

Despite the alleged victory, reports of vote tampering and other fraudulent electoral behavior were widespread. According to a report written for the Inter-American Dialogue by Nicaraguan journalist Carlos F. Chamorro (2009), the Supreme Electoral Council (CSE) “never reported the official voting records from a total of 660 polling places, equal to 120,000 votes or 30% of all votes in Managua.” Since the Sandinista candidate for mayor in Managua, former world boxing champion Alexis Arguello, narrowly defeated Eduardo Montealegre for the mayorship with only 51% of the vote, the uncounted votes in Managua could have potentially

33 _{Leading up to the Municipal elections, polling firms showed Daniel Ortega’s popularity rating hovering near 25%} (Chamorro 2009, 3).

tipped the scales in favor of Montealegre. Other allegations included the dumping and

destruction of marked ballots, the refusal of access for opposition party members to some of the vote counts, and an alteration in tallies at many of the polling offices (LA Times 2008). In addition, prior to the election the CSE had ruled that two opposition parties failed to file their paperwork properly and therefore were ineligible to run for office (The Economist 2008). Most observers of Nicaraguan politics agreed that the outcome of the 2008 election was potentially fraudulent and that claims of electoral irregularities should be addressed. As a result, calls for an investigation into the claims of fraud were numerous, coming from both intergovernmental

organizations as well as non-governmental organizations34. For example, the Atlanta-based

Carter Center issued a statement calling for “all actors, leaders, and civil and state authorities to seek an expeditious, legitimate, and mutually respectful solution to the claims of electoral irregularities and doubts” (The Carter Center 2008).

In the weeks following the elections, protests and violence from both opposition and government supporters filled the streets, prompting the CSE to announce a recount of the votes, although again international observers were to be barred from observing the recount. SG Insulza issued a press statement a few days after the elections expressing concern over the allegations of fraud, noting that “one of the advantages of electoral observation missions is that they help dispel any doubts whenever election results are close” (Organization of American States E434/08 2008). He called for the dispute to be resolved peacefully and argued that the principles “enshrined in the Inter-American Democratic Charter” should be respected and followed. In press statements from the State Department from before and after the date of the elections, the United States also expressed concerns about the quality of the elections. One press statement,

34 _{This list is not exhaustive, but the list of the groups calling for a recount of the elections included: Freedom} House, Washington Office on Latin America, the Catholic Church, The Carter Center, and the Secretary General of The Organization of American States.

issued on the day of the elections, noted concerns about “reports by domestic election

observation groups and opposition parties of widespread irregularities at voting stations” and reminded Nicaragua of Article 23 of the Inter-American Democratic Charter, which “holds member states responsible for ‘ensuring free and fair elections’” (“U.S. State Department Press Release 2008/942” 2008).

In response to the statements by the United States and the Secretary General, the Nicaraguan delegation requested that they be given time to speak at the next session of the Permanent Council to present a report regarding the “Act of Interference (Injerencia) of Certain International Organisms, of the Department of State of the United States and of the Secretary General of the Organization of American States.” On November 20, 2008, eleven days after the elections, the Permanent Council held a meeting for the Nicaraguan delegation to present its report against the United States and Secretary General and to hear a response from the accused parties.

In the Permanent Council meeting, the Nicaraguan delegation attacked the comments regarding the elections from the United States and the Secretary General of the OAS, claiming that the United States had been on a campaign since 2006 to destabilize the government of Nicaragua under Daniel Ortega (“OAS Meeting Minutes CP/ACTA 1671/08” 2008, 6). The Nicaraguan delegate went on to describe the statements by the United States and the Secretary General as a campaign to “destabilize and collapse the institutions of the State, and, in particular, [to ensure] the overthrow of the Government of Reconciliation and National Unity of Daniel Ortega (9). The ambassador also defended the elections in Nicaragua, arguing that Nicaragua is a “free, independent, and sovereign state” (9). With regards to the statements by the SG on the validity of the elections, the Nicaraguan ambassador stated that the SG had “overreached in his

functions” and that it was inconsistent with the OAS Charter, which does not give any authority to the SG to intervene in “issues of internal jurisdiction in member states” (11). In closing, the Nicaraguan representative presented a request for a resolution that called for the United States to cease in its violation of the sovereignty of Nicaragua, reminded the North American

governments to not use economic pressure and to refrain from resorting to the threat of the use of force against the Nicaraguan government and state, and finally, that the member states of the Organization of American States would reaffirm the respect for sovereignty for the Nicaraguan state, its institutions, the democratic participation of its citizens, and its desire for peace (11).

After the Nicaraguan ambassador spoke, the floor was given to the Ambassador of the United States to respond. The United States ambassador stated that the member states had been convened to “talk about a constructive way forward to support democratic governance in Nicaragua” (12). He noted the specific articles in the IADC that address the role of elections, such as Article 23 (“member states are responsible for organizing, conducting, and ensuring free and fair electoral processes”) and Article 3 (“essential elements of representative democracy include…access to and the free exercise of power in accordance with the rule of law, the holding of period free and fair elections…” (12). He then mentioned the fact that the 2008 municipal elections were the first since 1990 where the Nicaraguan government refused to allow international election observers and that fact, combined with reports of “widespread

irregularities” and violence in the country, indicated a need for concern regarding the democratic process in Nicaragua. The U.S. ambassador proposed a “full and transparent audit of the results of the municipal elections” so democracy could be further strengthened “in coordination with the Democratic Charter” (13). He also emphatically rejected the resolution proposed by Nicaragua, stating, “we do not and will not support that draft resolution for many reasons” (14). He closed

by saying the United States had an alternative draft resolution to support democratic governance in Nicaragua and that the response to the electoral situation in Nicaragua was not interference but rather, “demonstratively the opposite” (14).

After the two delegations spoke, numerous member states took the opportunity to comment on the reports from Nicaragua and the United States. The ambassador from Panama emphatically defended the role of the OAS, and in particular the SG, in defending democracy. The Panamanian ambassador stated that, without reference to specific cases, he believed the SG “can and should express opinions, make suggestions, comments, and considerations aimed at the preservation and strengthening of the political and legal institutions of the OAS, along with the Charter and the IADC” (16). Panama then stated they could not support the draft resolution proposed by Nicaragua.

The Venezuelan ambassador spoke next. He first recounted a history of intervention by other member states (notably the United States) and a lack of response from the OAS in the face of dictatorships and the removals of democratically elected presidents in the past (such as Salvador Allende of Chile and Jacobo Arbenz of Guatemala). He also stated that in some cases there are “undemocratic opposition groups, coup-plotters (golpistas), who will never accept the new tendencies in the continent” (19). With a clear preference towards sovereignty and the Nicaraguan delegation’s account of events, the Venezuela delegate ended his comments noting that the OAS and the member state delegations should not “fall into the temptation to become judges of those whom we cannot, and should not, have the right to judge” (20).

Honduras spoke after Venezuela, offering a middle-of-the-road approach to the two viewpoints of the United States and Nicaragua. On the one hand, the Honduran ambassador stated that he would not comment on either of the resolutions. First, because the one proposed by

United States was distributed only in English and that “speaks of the paternity [que eso habla de la paternidad],” a reference to the historical hegemonic role of the United States. Second, he stated that he did not believe the Nicaraguan resolution contributed to Nicaraguan democracy and only served to deepen the differences in the Organization, therefore Honduras would not support that resolution either (20). In an important expression of support for the SG, the

Honduran ambassador also stated that Honduras had “confidence in the Secretary General of the Organization and would not go against him in any form, in any way” (21).

Canada acknowledged the civil society organizations from Nicaragua that had presented written reports to the delegates of the Permanent Council and noted concerns regarding the violence, the irregularities in voting procedures, and the lack of independent observers to the elections. The Canadian ambassador did not endorse either resolution, but did state in closing that Canada “expresses its support for a constructive role by the OAS and its Secretary

General…in line with the Inter-American Democratic Charter, to which we have all signed on” (22).

The Mexican delegation was more supportive of Nicaragua’s position, cautioning the member states to not move too quickly, especially since the Nicaraguan institutions had not had sufficient time to address the situation. Although the Mexican delegation supported the ability of the SG to address concerns he may have, stating that they agreed with the general objective of the press releases from the SG, they also argued it would have been preferable for the SG to speak directly with the member states instead of making a public announcement (21). Guatemala spoke on behalf of the Organization and its efforts in observing elections, noting its own history of working with the Organization for electoral observation. The Guatemalan ambassador

their own elections, as “the promotion and consolidation of representative democracy” are essential parts of the various resolutions and agreements passed by the member states (23). Colombia agreed with the vision of Guatemala, Canada, and the United States, arguing that the OAS would become a useless organization if the SG were unable to speak out against matters of importance to the OAS, including the development of democracy. This vision of the role of the SG was shared by many other member states, including Argentina, Costa Rica, Peru, Paraguay, Chile, Uruguay, the Dominican Republic, Guyana, and El Salvador.

Although the view that the Secretary General had the right to comment on concerns relating to democracy was held by a large group of member states, for many of those states the principles of sovereignty and non-intervention were also highly important. For example, Peru’s delegation spoke of the “essential objectives of the Organization, which includes the promotion and consolidation of representative democracy within respect to the principle of non-

intervention” (27). Brazil similarly agreed that democratic defense was an important principle but that it must be balanced with sovereignty and equanimity. Ecuador also reaffirmed the preference of some of the member states for sovereignty over democratic defense. The

Ecuadorian ambassador stated that the member states needed to respect the norms of sovereignty and of non-intervention in member states, noting that each member state should have “the right to choose, without external interference, its political, economic, and social system” (31).

Noting the divisions in opinion among the various member states who had spoken, the representative of Guyana made a point that is decidedly key for the discussion on the role of procedural norms in the OAS: that it was obvious that neither of the two draft resolutions would be passed by the Permanent Council, because “it should be obvious that draft resolutions that are presented that call on any country, in effect, to censure itself, are not going to prosper and not

going to go forward” (35). The representative of Guyana made an additional point to support the SG and cautioned against attacking him in a way that might “erode his authority, diminish his standing, or impugn his character” (35).

The SG was then invited to speak by the President of the Permanent Council. The SG defended his record of promoting democracy and argued that a major part of his career had been focused on the defense of democracy. As a result, he would continue to speak about the issues facing the member states in the region. After his remarks, the Nicaraguan ambassador spoke briefly, simply stating they would not be supporting the resolution proposed by the United States and they would be continuing the conversation with those who wished to speak to them. Since it was clear to the member states that neither draft resolution had unanimous support from the member states, the meeting was adjourned. No resolutions were passed and no further action was authorized for the Organization of American States to take any additional steps to address the allegations of electoral fraud in Nicaragua.

The United States and the European Union responded to the electoral fraud unilaterally by imposing economic sanctions on the Nicaraguan government. In spite of these sanctions, according to the U.S. State Department’s report on human rights the CSE had still not conducted a recount by the end of 2008. Despite the ability of the United States to impose unilateral

sanctions on Nicaragua, the Nicaraguan government was able to avoid any further sanctions from the OAS due to the internal mechanisms of the OAS, the limitations on passing resolutions that criticize member states, and the divisions within the OAS regarding the balance of sovereignty and democratic defense. The example of the limited OAS response to electoral fraud in

Nicaragua demonstrates a case in which executive overreach is able to go unpunished, even when the incident is discussed at the Organization. This trend towards protection of executives

during instances of overreach can also be demonstrated by looking at a case of a violation of freedom of expression in Venezuela.