This Ongoing Institutional Crisis

This Ongoing Institutional Crisis Brought to You by Nicaragua’s Daniel Ortega

by COHA Research Associate Brendan Riley

The election of Daniel Ortega to the presidency of Nicaragua in 2006 marked the commencement of his second presidential term following three unsuccessful bids for the office. As the leader of the Frente Sandinista de Liberación Nacional (FSLN), Ortega holds a place in Nicaraguan history for his role in the successful revolution of 1979. Then an idealistic leftist guerrilla leader, Ortega has since changed in a number of ways. During his 2006 campaign, he ostensibly embraced Christianity, adopted a more moderate political approach, and patched up traditionally sour relations with the Catholic Church by supporting a ban on abortion, which is now illegal even when the pregnancy endangers the life of the mother. Billboards around the capital city, such as one that pictures the president next to the words “Cristiana, Socialista, Solidaria,” illustrate Ortega’s conflicting ideology. His casual abandonment of revolutionary ideals has disillusioned once ardent followers, diminishing their faith in the democratic system. However, of greater detriment to Nicaraguan democracy is Ortega’s willingness to manipulate institutions to further consolidate his personal rule.

A former guerrilla leader of the revolutionary leftist movement that deposed the dynastic Somoza dictatorship in 1979, Ortega has since rid himself of his once cherished idealism. He has sought to extend his stay at the head of Nicaraguan politics by violating the Nicaraguan Constitution at the cost of the country’s precarious democracy. He has also restricted opportunities for loyal opposition, leaving his already weakened political opponents powerless. Over time, the Ortega-led FSLN has managed to politicize state institutions, subjecting them to presidential whim. By manipulating already corrupted institutions, Ortega has managed to exploit extra-constitutional channels to consolidate his rule without creating the image of a full autocracy. However, upon closer examination, many of the steps taken by the Ortega administration reveal his growing autocratic tendencies.

El Pacto between the Caudillos

Although a grave institutional crisis has emerged out of a series of reforms during Ortega’s current presidency, its seeds were sown in 1999 by a power-sharing deal between the two largest political parties, the Partido Liberal Constitucional (PLC) and the FSLN. Infamously known in Nicaragua as el pacto, this arrangement sought to establish a duopoly within state institutions. It has largely achieved its goal of reducing the clout of splinter parties and pushing Nicaragua towards a two-party political system. Today the pact continues to benefit long-ruling party leaders Arnoldo Alemán and Ortega, both of whom have served as presidents in the past. Indeed, the pact set the stage for the reforms that have slowly whittled Nicaraguan institutions from independent bodies into politicized tools at the mercy of the nation’s reigning caudillos.

Although the authors of the deal claim that parties often make such legislative alliances for the sake of expediency, blatant corruption underlies the agreement. Despite their conflicting political ideologies, FSLN and PLC lawmakers in the National Assembly cooperated to ratify nearly twenty amendments to the Constitution in 1999 alone. Such collusion produced manipulations of the Supreme Court of Justice (CSJ) and the Supreme Electoral Council (CSE). In the former, the reforms expanded membership from twelve to sixteen justices, making certain that the FSLN and the PLC elect the new seats. Likewise, the pact raised the CSE membership from five to seven, also delegating member selection to the two parties.1

The pact reformed the electoral system as well, lowering the threshold needed for a presidential victory from forty-five percent of the vote to forty percent, adding an exception that allows one to win with thirty-five percent if that candidate leads all others by at least five percent. This provision was specifically aimed to allow Ortega to win office, as he had received just under forty percent of the votes in his previous unsuccessful bids.2 Furthermore, this prevented a second round run-off, which Ortega certainly would have lost. However, the pact did not solely benefit Ortega; Alemán ceded these gains to Ortega’s FSLN in exchange for a reduced sentence for a corruption conviction.

The PLC leader, whom Transparency International once ranked the ninth most corrupt leader in the world, was convicted of embezzling over one-hundred million U.S. dollars in state funds while serving as president of the second-poorest country in the Western Hemisphere, with only Haiti ranked as poorer.3 His conviction initially imposed a strict twenty-year jail sentence. Thanks to the pact, however, the courts succeeded in reducing Alemán’s sentence to a mere five years of house arrest, ostensibly due to health reasons. They further relaxed this punishment by lessening the restriction on his movement so that he could travel throughout the country but not leave its sovereign borders.4 Driving a nail into the coffin of justice, the tainted CSJ overturned Alemán’s conviction in early 2009, freeing him completely. Since returning to the PLC leadership, Alemán has inexplicably retained his hold on a sector of the population despite being strongly hated among the general populace.

2008 Municipal Elections: Allegations of Fraud

A series of irregularities stained the 2008 municipal elections, leading many members of the opposition to cry fraud. In a supposedly nationalist move, Ortega denied accreditation to independent election observers from both Nicaragua and abroad.5 No government had enforced such a restriction since the 1990 elections that removed the Sandinistas from power. Furthermore, the now heavily politicized CSE banned two opposition parties from running due to supposed technicalities concerning paperwork, but many suspect ulterior motives.

On election day, reports arose of the alteration and destruction of marked ballots. Some claimed that opposition party members were unfairly denied access to polls.6 Ética y Transparencia, a local independent organization comprising thousands of poll observers, declared that such irregularities occurred at roughly one-third of polling stations. After the FSLN announced its victory in a strong majority of the mayoralties, it did little to address domestic and international concerns of electoral fraud. This soured relations with many Western donor nations and further polarized the domestic political environment.

Latin American Taboo: Ortega’s Push for Re-election

During the celebration of the thirtieth anniversary of the 1979 revolution, Ortega announced his desire to push for re-election if the popular will demanded it. He proposed a referendum to amend the constitution, which limits the president to two terms and forbids consecutive re-election. Although this did not come to fruition, his aspiration to stay in power manifested itself in Judgment 504, issued by the Constitutional Tribunal of the Supreme Court of Justice on October 19, 2009. The decision, which evidences the subjection of the CSJ to Ortega’s political will, cleared the President’s path towards re-election. However, it did so in such a complex and technical fashion that much of the population may not have fully comprehended his tactics.

Nicaragua’s Organic Law of Judicial Power (Law 260) designates that the Constitutional Courtroom of the CSJ will hear all cases of amparo, a resource through which citizens whose constitutional rights have been violated may approach the courts for compensation, much like a redress of grievances.7 In the amparo framework, the decision made by the court aims to affect only the individual who brings forth the complaint.8 For example, if a Muslim claims a violation of his right to free exercise of religion, the Court would respond with an act directed solely towards the individual who filed the complaint. Utilization of this legal framework in the context of electoral reform is odd because of the narrow, focused nature of the Constitutional Courtroom’s decisions. Ortega wanted to overturn the re-election ban, so the amparo mechanism seems a futile path towards a subsequent Ortega candidacy. However, Ortega and the FSLN mayors made an amparo claim that the Constitution’s ban on re-election violated their political rights. Despite having up to forty-five days to make a decision on such a case, the Court acted with suspicious haste. Two PLC magistrates claimed they were not given enough time to meet, whereas another was out of the country. The Court convened regardless of the absence of those members amid allegations that they did not establish a legal quorum.9

Many believe that the Constitutional Courtroom overstepped its bounds, as only the full Court itself can issue a decision on the constitutionality of contested laws. However, the decision did not deem the article banning re-election unconstitutional; rather, it declared the article “inapplicable” to those who brought the case forward. In other words, Daniel Ortega may run for the presidency repeatedly because the constitutional ban does not apply to him. The FSLN mayors are similarly exempt from the ban. The ban does, however, apply to every other politician in Nicaragua. While its logic seems inexplicable, the decision aims narrowly because of the nature of the amparo mechanism. The selective application of the re-election prohibition occurred thanks to Ortega’s influence upon and manipulation of the judicial institution. Lacking independence, the politicized judiciary demonstrates that the Nicaraguan state is no longer characterized by a separation of powers.

How to Stay in Power, or, Decretismo, Patronage, and Violence

Following the Court’s decision, Ortega announced Decree 03-2010 in early January 2010 just as the constitutional terms of twenty-five different government officials neared their expiration. Among these officials were two of the CSJ justices who decided the controversial amparo case.10 As partisan battles in the National Assembly slowed the appointment process for new officials, Ortega acted to “avoid chaos” by issuing the decree. This move allowed the individual officials to remain in office beyond their terms’ expiration in violation of constitutionally-mandated term limits and the congressional power to manage such appointments.11 Ortega has a clear interest in keeping these sympathetic, if not entirely subordinate, justices on the Court to uphold the controversial re-election ruling. Though it is true that legislative roadblocks have constituted severe problems in Nicaragua’s recent past, the President’s justification for the decree creates a slippery slope for pardoning executive overreach in a democracy that depends on the separation of powers model. The decree ignited fury among opposition lawmakers, who refused to convene in the National Assembly for some two months in protest.

The legislature remained in deadlock until the expiration of two Sandinista justices’ terms in mid-April. When the two followed the orders of the presidential decree, the opposition vowed to act. Upon arriving at the National Assembly building on April 20th, lawmakers intent on overruling the illegal decree were greeted by mobs of FSLN supporters blocking the entrance to the building. Others fired morteros (homemade firework-launchers) and hurled rocks at the building in protest. The chaos left three PLC members with minor injuries. Another eighteen opposition members were held hostage in the building for eight hours while FSLN supporters destroyed two opposition members’ cars. Despite all this, the legislators convened in the Holiday Inn, established a legal quorum, and held a congressional session that overruled the illegal decree.12

The violent demonstrations caused by the precarious political situation left the nation in a state of high tension, as many wanted those responsible for the violence to be held accountable for their actions. President Ortega, however, ordered police forces to back off, and no arrests were made. Past clashes between pro-Sandinista mobs and opposition groups witnessed a similar mood of complacency from the President. Though never openly condoning the violence, he has not spoken out against it or made an effort to control the intolerable actions of his followers. Consequently, many have speculated that the FSLN supports the violent actions, while some even accuse the government of paying off individuals to carry out these crimes. Regarding the protests, Ortega claimed that the violence embodies the “simple, legitimate expression of the people.”13 Such overt complacency on the part of the Head of State serves as a passive endorsement of the unacceptable and destabilizing violence and makes for a much more polarized political environment.

The Supreme Court of Justice responded to the improvised congressional session with two major decisions that continue to demonstrate its politicized components. The first decision nullified the April 20th session held at the Holiday Inn Hotel that had overruled Decree 03-2010, meaning that the mandated term extensions were now destined to remain valid. The second decision stripped immunity from seven opposition members of the National Assembly. Under Ortega’s influence, the more politicized elements of the CSJ sent a stern message that they do not want to be crossed and that such behavior will not be tolerated.

FSLN hostility towards the opposition also manifested itself in Ortega’s address to the Consejo Superior de la Empresa Privada (COSEP) on May 26. While speaking to the organization of private sector interests, a foe of the Sandinista regime of the 1980s, Ortega proposed dissolving the National Assembly if the group would support the move. Although he later claimed to have made the suggestion in a facetious tone, it appears that Ortega is more than willing to annex the legislative power as his own.14,15 One can only speculate as to whether he would indeed pursue such an opportunity; however, no head of state should even hint at such a proposal, whether in jest or not. Given Ortega’s past, the opposition takes the presidential word very seriously and fears his possible next move to eliminate the barriers that remain between him and a lasting, personalistic, and less than democratic regime.

Running out of Options

Given the public outrage at the President’s increasingly autocratic tendencies, the opposition has organized itself against re-election and other flawed state actions. Civil and political society have remained outspoken in Nicaragua in spite of government repression. One example is Ortega’s Operation No More Lies campaign in 2007, which investigated seventeen different NGOs on bogus charges of embezzlement. While most of the NGOs opposed Ortega’s regime, the investigation spuriously attacked apolitical institutions, such as Oxfam.16 Prospects still appear grim. As the ruling FSLN government continues to manipulate institutions and relationships, the opposition loses outlets for legal, effective dissent. In a fit of desperation, the opposition recently requested that the OAS intervene; however, as evidenced by the Honduran coup crisis, the OAS suffers serious institutional limitations of its own, as it only acts upon request of the executive.

If one must oust a tainted official, one must do so through legal, democratic channels. Unfortunately, the state has severely limited those avenues in Nicaragua. One available alternative is to simply vote against Ortega in the 2011 election. However, through the aforementioned pact, Ortega has exercised a high degree of control over the state and practically monopolized the presidential candidacy through the FSLN party. He has also restricted other parties, consolidating the political arena into a two-party system in practice, one in which he has significant leverage over both factions.

At this point, the only two viable parties are the Sandinistas and the Liberals. Despite Alemán’s tainted history among politicians in Nicaragua, he remains at the forefront of the PLC leadership and has vowed to run in the 2011 elections.17 Inexplicably, he retains a significant amount of popularity among many Liberals. Moreover, he is unlikely to cede his candidature to the more feasible Liberal Eduardo Montealegre, whom he has openly denounced in the past. If Montealegre does run, the opposition will be split, and Ortega will win again with a small but substantial plurality as he did in 2006. Even if Montealegre does not run, Ortega would surely defeat Alemán, perhaps the most hated politician in the nation. Alemán’s candidacy highlights another great detriment to the struggle against Orteguismo: corruption, mediocrity, and opportunism mar not only the FSLN, but the opposition as well.

Many wonder who could successfully oppose an Ortega candidacy in 2011. Nicaraguans view politics with a great deal of skepticism, often balking at the extreme corruption of those involved in the power game. Indeed, in Transparency International’s 2009 Corruption Perceptions Index, Nicaragua ranked 130th out of 180 countries with a dismal score of 2.5 out of 10. For added perspective, Nicaragua tied on this scale with Honduras, Libya, and Lebanon. While this extreme corruption fortunately has not created a cultural apathy towards politics, it has created an operating distrust in politicians and state institutions, leaving doubt as to whether democracy is the best game in town. That a new, clean candidate will be able to capture the hearts and minds of the Nicaraguan people and restore their faith in government seems unlikely at this point in time.

However, no one should jump to conclusions that a Honduran-style coup will occur to its southern neighbor. Nicaragua possesses a professionalized and apolitical military while President Ortega enjoys a hard core of faithful supporters. Such a radical act by the opposition would stir up fading memories of the 1980s Contra war in what is still today a strictly divided political environment. Thankfully, most Nicaraguans are well aware of the costs of a coup and would not dare to emulate such a blunder.

Nicaragua’s Future: A Bleak Outlook

Although one should be grateful that there will not be another Honduras, one must also acknowledge that few solutions to the current crisis in Nicaragua make themselves available. Each day the channels for loyal opposition are lessened and become more limited. Ortega has further consolidated his place in Nicaraguan politics, and his staying power appears strong. Although most of his policies have not created great controversy, Ortega’s methods continue to reek of personal ambition and an inherent disregard for the democratic system. His messianic aspirations to remain in power as the revolutionary father of the nation also echo his own frustrations with Nicaraguan politics, as an era of failed neoliberal policies prevailed during the previous three presidential administrations.

Though President Ortega may feel he knows what is best for them, Nicaragua’s people deserve a right to choose a destiny for themselves in a free and fair society. Ortega must stop obstructing the democracy that he and many others worked so hard to establish after years of oppression under previous dictatorships. There is a sad irony to the accusations that Ortega’s growing autocratic tendencies liken him more and more to the ruthless tyrant he fought to overthrow. Although such claims are exaggerated, they present a clear message: President Daniel Ortega has changed. One can only hope that he has not changed into the next Somoza.

References for this article are available here.

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This analysis was prepared by COHA Research Associate Brendan Riley
Posted 16 Jun 2010
Word Count: 3100

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