Caribbean & Central America - September 2018 (ISSN 1741-4458)

Authoritarian regimes are typically defined by what separate them from democracies. Most often, they lack fundamental democratic attributes including protecting, enforcing, and promoting citizens’ rights, ensuring a separation and independence of powers in all branches of government, and supporting security forces that are accountable and loyal to a constitution, not a party. Human rights groups and think tanks such as the US-based Inter-American Dialogue argue that under the current Frente Sandinista de Liberación Nacional (FSLN) government led by President Daniel Ortega, Nicaragua has come to fit this definition almost to a tee.

• Democracy Index

Based on analysis of data up to the end of 2017, The Democracy Index, compiled annually by the UK-based Economist Intelligence Unit (EIU), registers the Nicaraguan government as a ‘hybrid regime’, which has significant weaknesses but is not yet classed as ‘authoritarian’. However, it will be interesting to see how the regime is ranked in the next issue, which will include analysis of the events in 2018.

In 2016, President Ortega won his second re-election without facing legitimate opposition and despite widespread calls of election fraud. Since then, the FSLN government has held a monopoly in parliament (71 out of 92 legislators), the justice system (11 out of 16 magistrates), and the electoral system (seven out of 10 commission members), while also controlling the national army and police. He also sustains a mechanism of social control using street mobs, which he directs through the organised membership of the Sandinista Youth. They are individuals (now militarily) trained to intimidate and crush civil disobedience using any means. As documented by human rights organisations such as the Office of the United Nations High Commissioner for Human Rights (OHCHR), these mobs have been responsible, through tacit police support, for many of the deaths since mid-April, following clashes over the newly proposed pension reform.

It is now becoming increasingly clear that recent protests reflect the anger of the Nicaraguan people towards what many describe as an environment of systematic corruption and abuse of authority that has spanned almost 30 years. As tensions between the government and protestors persist, the pro-Ortega justice system is enabling the use of repressive force causing the deaths of over 300 people since 19 April 2018. In July the legislature approved an anti-terrorism law which can be used against protesters, leaving unprotected the constitutional right to freedom of expression for all Nicaraguans, which has also prompted concerns from human rights groups. In fact, pro-government judges have been put in charge of prosecuting demonstrators, while organisations like the Inter-American Commission on Human Rights (IACHR) report that doctors, nurses, and educators have been sacked for tending to wounded demonstrators. However, the chaos in Nicaragua today is a direct result of a series of moves to undermine democracy dating back to the beginning of Ortega’s rise to power.

Controlling justice institutions as a means to secure power

A key criticism levelled at Ortega is that the denial of plurality in political identity and a lack of checks and balances across all powers are part of a conscious effort to establish a singular and uncontested authority. Nicaragua lacks proper access to impartial judges and a fair rule of law. This situation can be traced back to the Sandinista revolution which opened the door to a system of transactions of power by bribing or blackmailing opponents to reach a majority in courts.

After his defeat in the 1990 elections, Ortega took advantage of constitutional reform in 2000 based on a pact with then-president Arnoldo Alemán (1997-2002) and gradually increased the number of supreme court (CSJ) justices. Because the FSLN-controlled legislature voted to approve candidates, it chose FSLN judges, expanding their numbers over the next 15 years. To achieve constitutional and legal reform, Ortega again used the threat of street mobs while simultaneously creating pacts with other political parties by buying their loyalty. Using this strategy, by 2000, 12 out of 16 CSJ magistrates, also charged with appointing district judges, were Sandinista.

At the same time, between 1990 and 2016, various pivotal and controversial judicial cases were decided in favour of Ortega. In particular, two critical cases secured his near absolute monopoly of power once president. First, Ortega pressured the CSJ in 2010 to reverse article 147 of the Constitution, allowing him to legally run for re-election. Then, in his run for a second re-election six years later, he ordered the CSJ to remove Eduardo Montealegre as the legal representative of the leading opposition party, Partido Liberal Independiente (PLI), only four months before the elections. As a result, the party was left fragmented and without a candidate, allowing Ortega to win an uncontested 72% of the votes. By then, he had secured his legal footing by controlling any legal challenge and by using the courts to his advantage.

Moving forward, transitional justice a lo Nica

The extent of authoritarianism and corruption in the government can help explain the frustration and anger that has recently exploded in the country. (It is worth recalling that the latest [February 2018] Corruption Perceptions Index (CPI) by the NGO Transparency International showed Nicaragua ranked beneath its Central American neighbours, coming 151^st of 180 countries, down from 123^rd the previous year). The protestors’ demands suggest a political transition for Nicaragua is necessary, with justice reform a centrepiece of it. Above all, the transition must include the re-establishment of democratic rule through free and fair elections, accompanied by a comprehensive effort to ensure the independence of political institutions. To achieve this, think tanks like the Inter-American Dialogue argue that it is crucial to create transparent and democratic procedures in all branches of government with the help of an independent international committee which could be supplemented by establishing an oversight committee to supervise all administrative and political decisions.

Once this occurs, the establishment of a transitional justice mechanism to create an accurate historical record of events dating back to the 1980s is likely to be considered key. More than 500,000 Nicaraguans were internally and externally displaced due to the civil war and more than 45,000 people lost their lives. When a peace settlement was negotiated, the two main goals were establishing free and fair elections and disarming the Contras while reducing the size of the Sandinista army. Although those steps were imperative, there were no investigations of abuses perpetrated by both sides and no mechanisms put in place to address redress for victims. This was most evident during the transition period under President Violeta Chamorro (1990-1997), when various investigations into political assassinations led by Sandinista courts failed to yield any verdicts, despite evidence of Sandinista security forces’ involvement.

• Retributive justice

As we have seen in other countries in the region such as El Salvador, and Guatemala with the United Nations (UN)-backed anti-impunity commission in Guatemala (Cicig), retributive justice can substantively contribute to building trust and restoring an impartial justice system in the long-run. A similar programme would enable Nicaragua to hold accountable those responsible for political corruption and physical violence over the last 40 years and address the concerns of demonstrators and the organised non-violent opposition in the streets today.

The failure to attend to past and continued abuses has created resentment among Nicaraguans across generations and fuelled political mobilisation against the Sandinistas and Ortega to this day. The civil war was fought with a deep sense of division and hatred and many returned to their homes after the war sharing their day-to-day lives with adversaries without the opportunity to heal wounds, achieve justice, and bridge the divide. Addressing this resentment by establishing the truth and acknowledging the pain of victims and their families, although difficult, would be a key step in achieving justice and reconciliation, something many Nicaraguans have been denied for decades.

However, the first step in this transition is investigating the recent abuses perpetrated by the government including political and economic corruption (including nepotism) and the use of repression and violence. Those who have participated in the deaths of protestors since the beginning of 2018 should be prosecuted without the possibility of amnesty. The political value of amnesties for Nicaragua is substantively limited when this instrument has been used and abused in the past to satisfy impunity.