Caribbean & Central America - November 2009 (ISSN 1741-4458)

President Daniel Ortega would appear to have succeeded in his declared aim of ending the constitutional ban on presidential re-election. A ruling by the constitutional chamber of the highly politicised supreme court (CSJ) has lifted the prohibition, allowing Ortega to compete again in the 2011 presidential contest. The court's decision is illegal (only the legislature is authorised to make the change). However with the credibility of Nicaragua's institutions in tatters - as was already illustrated in the November 2008 municipal vote - and the opposition as divided as ever, there is every likelihood that the ruling will stand.

Ortega had first publicly declared his interest in re-election in March [RC-09-03] and initially sought to overturn the ban, (introduced in 1995 under the rightwing Violeta Chamorro administration), via the appropriate constitutional means - the national assembly. Under Article 194 of the constitution, a two-thirds majority in the 92-seat congress is required to make constitutional changes and, hampered as ever by the fact that his ruling Frente Sandinista de Liberación Nacional (FSLN) has only 38 seats, Ortega made repeated attempts at capturing the remaining votes.

These efforts, which received ample coverage in the local press, ranged from the time-honoured practice of offering posts in government institutions as part of “el pacto", the decade-old power sharing arrangement with former president Arnoldo Alemán (1997-2002) of the opposition Partido Liberal Constitucionalista (PLC), to Ortega's threat to revive legal proceedings against opposition leader Eduardo Montealegre for his alleged role in the Cenis bank fraud in exchange for votes from his Bancada Democrática Nicaragüense (BDN).  These attempts ultimately proved unsuccessful, however, and, in an uncharacteristic display of unity, both opposition leaders remained firm.

'A constitutional coup'
Faced with resistance from the political opposition, Ortega abandoned constitutional channels and turned to the judiciary - one of the institutions politicised under “el pacto". On 15 October his legal representative, Eduardo Mejí­a presented an appeal against Article 147, which bans re-election to public office, to the Managua appeals court. Four days later, the head of the CSJ's constitutional chamber, Francisco Rosales, announced the article had been removed, a ruling promptly endorsed by Roberto Rivas, the head of the highly discredited supreme electoral court (CSE), leading Ortega to pronounce the ruling “set in stone".

The CSJ's argument for revoking the ban was that it violates a basic human right to seek election - the same argument as was used in Costa Rica to overturn a similar prohibition on re-election in April 2003, which allowed Oscar Arias to seek and win a second term in office. The comparison subsequently sparked an angry response from Arias who protested that the two resolutions were like “oil and water" given the Nicaraguan judiciary's notorious “lack of independence".

The court's ruling unsurprisingly provoked outrage in Nicaragua, not least from the PLC-aligned CSJ president, Manuel Martí­nez, who highlighted the dubious process whereby the decision had been reached; the CSJ's constitutional panel comprises three judges aligned with the PLC and four affiliated with the FSLN including Rosales. Martí­nez complained that the three PLC judges received insufficient notice of the meeting and were replaced by three FSLN substitutes. This, however, replicates the procedure whereby Alemán's fraud and embezzlement conviction was overturned in January this year [RC-09-01] where a PLC-substitute was called in to replace an absent FSLN judge. The parallels led opposition figures to accuse Alemán of striking a deal with Ortega.

In an unprecedented show of unity from the country's different sectors, the political opposition, civil society groups and the business sector issued a joint statement condemning the move as a “coup by Orteguismo", and agreed a series of measures- including a legislative committee to recover control of the national assembly - the one institution not under Ortega's thumb. The country's two most important business groups - the superior council of private enterprise (Cosep) and the US-Nicaragua Chamber of Commerce (Amcham) - also joined the anti-Ortega movement.

However as was the case with the highly questioned November municipal vote, where the FSLN's sweeping and allegedly fraudulent victory has remained in place, these unity pledges appear once again to have foundered; an opposition Alianza Liberal Nicaragüense (ALN) member of the congressional directorate has already broken the pact, abstaining from a vote on whether to allow congress to debate the ruling, leaving the issue off the congressional agenda.

US response
The US, which led the international outcry over the municipal vote, (subsequently cutting off US$62m in funds through the Millennium Challenge Corporation (MCC) in response [RC-09-06]) has similarly expressed concerns regarding the ruling. On top of a strongly worded statement from the US State Department (see sidebar) US envoy to Managua, Robert Callahan, dubbed the ruling “improper", prompting Ortega supporters to pelt the embassy building with rocks and home-made explosives, and demand his expulsion.

This rhetoric has not been backed up with the threat of economic sanctions. The International Monetary Fund (IMF), which had effectively frozen aid to Nicaragua last year amid the transparency concerns, unexpectedly announced that it would continue its country programme with Nicaragua, leading opposition leaders to accuse the multilateral of sending Ortega a message of “appeasement". The IMF's decision allows the government - which has been forced to cut the budget three times this year - to receive an immediate loan of US$37.8m (bringing total disbursements to some US$85.9m).

• US concerns

The US state department issued a statement declaring it was “very concerned about the manner in which the Constitutional Chamber reached a decision regarding re-election for Nicaraguan officials, including the President. We share the concern of many Nicaraguans that this situation is part of a larger pattern of questionable and irregular governmental actions, beginning before the flawed municipal elections of November 2008, that threatens to undermine the foundations of Nicaraguan democracy and calls into question the government's commitment to uphold the Inter-American Democratic Charter." 

• Lack of support

A recent survey by local pollster M&R Consultores published in the national press showed 67.8% of those questioned were opposed to presidential re-election. The poll also showed that 50.3% did not identify with any of the political parties while 32.8% aligned themselves with the Frente Sandinista de Liberación Nacional (FSLN) and 9% with the opposition Partido Liberal Constitucionalista (PLC). The poll surveyed 1,600 people and has a 2.5% margin of error.