Looking at the Ruins of a Defiled Electoral Process

Following its November 1, 2008, pre-electoral message to the nation and its November 12 preliminary report of the irregularities observed on voting day, the Ethics and Transparency Civic Group published this final report on the 2008 municipal elections on February 23.

Since its founding in 1996, the Ethics and Transparency Civic Group (E&T) has observed 9 electoral processes in Nicaragua and accompanied them in over 25 countries as an international observer or adviser to national observer groups. Nicaragua’s Supreme Electoral Council (CSE) officially accredited E&T’s members in 8 previous national elections (the exception was 2004), including their right to have access to and remain inside the polling places—known as vote reception boards, or JRVs—and in other electoral nerve centers during the relevant periods. E&T’s network of volunteer observers has varied between 4,000 and 12,000 Nicaraguans in each electoral process.

No national or international observers

Despite the express stipulation of the Electoral Law and demands from four of the five parties running in the 2008 municipal election process, the CSE refused the application for accreditation presented by national observers and did not offer the usual invitation to distinguished international electoral organizations. IPADE, another group of national observers with a history of participation, also had its request turned down, while traditionally invited international observer groups, including the Organization of American States, European Union and Carter Center, were not asked to come this time.

It is worth pointing out that all the election observation organizations have issued reports containing severe criticism of the performance and excessive politicization of Nicaragua’s electoral body, despite having always agreed that all elections up to 2008 complied with at least the minimum requirements of validity and legitimacy. Given that this was not the case in 2008, it is valid to believe that the presence of observers could have played a key part in rectifying the national electoral body’s dangerous lack of credibility and bringing the electoral process to a good conclusion.

Our methodological adjustments

Given the lack of observation, E&T made significant methodological adjustments, stressing analysis of compliance with the Electoral Law, particularly regarding transparency and guarantees of the accuracy of counting; national observers’ access to the JRVs, gearing their training to capitalize on the fact that they were voters; and a comparative historical analysis to detect possible patterns of irregularities.

In previous elections, and generally speaking, E&T observers oversee proceedings throughout election day in the JRV where they are registered to vote, which implies an additional element of knowledge of that particular environment. Over 50% of the E&T observers have done this work in several previous processes, thus increasing their comparative analytical capacity.

Given that the CSE’s negative response to the presence of observers made it impossible to testify to the accuracy of the counting and conduct independent checking, E&T tried to tabulate the results of all JRVs in 100 [of the 146] municipalities [partiucipating in the November 9 elections], based on the results that were legally supposed to be posted in citizens’ view on the door of the JRV once counting was concluded. This was only very partially achieved, given that the CSE ordered the observers expelled even from the public areas of the voting centers, thus violating their basic constitutional rights. Additionally, in at least 30% of the cases, the CSE failed to comply with the legal obligation of posting the results of the vote count on the JRV door, visible to the public, which was one of the most serious violations of the reliability of the counting process.

Conditions for fraud existed
in almost all municipalities

For all of the above reasons, this evaluative report on qualitative issues is categorical that the right conditions existed for systematic fraud and extremely serious violations of transparency and of the guarantees for reliable vote counting in almost all of the country’s municipalities, and that this bias was designed to favor the governing party, distorting the people’s will in approximately 40 municipalities. This assertion does not include other elements detected prior to election day, which systematically favored the governing party, including the illegal abuse of state goods and handling of the inscription and registration of voters (the issuing of voter/ID cards), to mention just two factors that were clearly biased but whose effects are hard to measure.

Meanwhile, quantitatively speaking, the limited access of observers, their inability to attest to the vote counting, and above all, the CSE’s incompliance with the law in everything related to publishing the results, make it impossible to do what E&T has routinely done in previous elections: obtain and compare its results with the official results.

From a criticized bipartite
system to a collpased one

The main difference between these elections and the previous ones with respect to administrative electoral matters—which aggravated the conditions of illegitimacy and fraud plaguing recent elections—lies in the transition from a questioned electoral system of bipartite control to a collapsed system.

Nicaragua’s institutional design establishes the Supreme Electoral Council as a branch of state, nominally conferring upon it the most absolute and definitive administrative and jurisprudential faculties in electoral matters.

Nicaragua’s electoral system, with its bipartite logic, is characterized by legally transferring those powers to the two political parties that performed best in the previous presidential electoral contest for all subsequent elections. As a result, the electoral system has consistently generated distrust among the other parties towards the two parties controlling the electoral apparatus, as well as unequal treatment for those outside that circle of power.

Equally, the conflicts and competition between the two main parties in the CSE are reproduced and magnified rather than being resolved. The CSE’s manifest weakness and party bias in its role of electoral arbiter have been the subject of the greatest criticism from analysts and observers, which have made strong calls for this situation to be reformed.

The FSLN’s absolute hegemony

The questioned logic of mutual party control—which was the fruit of the Electoral Law born of the pact between the Sandinista National Liberation Front (FSLN) and the Constitutionalist Liberal Party (PLC) in 2000 and has generated illegitimacy and distrust—has also been shown to be precarious. It started to collapse in 2004 when the FSLN—the hegemonic party within the CSE—abandoned the basic premise of self-limitation, balance and mutual respect for the minimal spaces for its electoral adversary and moved to increase its control of the electoral institution.

This control became practically absolute in the run up to these latest elections, when the [new] second electoral force, in this case the ALN, showed that it lacked the institutional party development or popular support to continue the logic of mutual control sketched out in the Electoral Law, leaving the PLC—the party or alliance leader that has attracted the most votes over the past decade—in the same defenseless position in which the system has left the small parties since it began.

In previous elections, the two parties with the most votes [FSLN and PLC] had authorities that meant mutual control of both administrative matters (voter/ID card issuing, cartography, logistics, informatics, etc) and all the electoral bodies: departmental electoral councils (CEDs); municipal electoral councils (CEMs); and polling places (JRVs). But on this occasion, the PLC was totally absent from the administrative side of things [although it was still represented by three of the seven magistrates who make executive decisions]. It was also reduced to being represented by only a third member in under a third of the electoral bodies and barely a party monitor in the JRVs and vote-computing centers, from which on many occasions it was expelled or annulled. This disparity in the capacities to defend one’s own vote and attack the vote of others represented the collapse of the system of mutual control and the creation of the conditions for fraud.

Clear arbitrarities in
the pre-electoral process

Among relevant evaluative factors in the pre-electoral period we can point to the biased voter/ID card issuing process, electoral violence without any control actions, and the use of state goods.

The pre-electoral process revealed early on the CSE’s arbitrary will by changing the electoral calendar and the conditions of competition, which can only be explained from the logic of creating party political advantages. March saw the surprise reduction of the normal period for parties to formulate alliances and present candidacies from two months to just 15 days. These activities were programmed in the previous electoral calendars for the months of June and July, and in the past the CSE granted any extensions required.

Then came the decision to confer legal representation of the Nicaraguan Liberal Alliance (ALN) to the former president of the Liberal Salvation Movement (MSL), which sounded alarm bells that the electoral authorities were taking sides in a more evident way than in previous elections. This action can be explained from a legal point of view, as the ALN’s legal status grew out of the MSL, but removing the ALN’s most popular figure [Eduardo Montealegre] follows the party-based logic that has informed the CSE’s actions throughout the process. By July, the CSE’s presiding magistrate, Roberto Rivas, was attending FSLN party rallies, chanting the governing party’s slogans in full view of the country’s media.

The CSE’s elimination of two political parties, the Sandinista Renovation Movement (MRS) and the Conservative Party (PC), under the false argument that they had committed illegalities, also demonstrated the same lack of democratic vocation among the two main political parties and bestowed an irreversible and growing illegitimacy on the electoral process. The CSE applied article 82 of the Electoral Law to the PC, which requires parties to present candidacies in at least 80% of the electoral races and in at least 80% of the municipalities, even though the PC achieved 81% and 85% respectively. The CSE apparently made its calculations in the interim period between the initial presentations of candidacies, when it ordered the replacement of candidates that did not meet its requirements, and the final presentation, as the PC was in compliance with the requirements at the time of both presentations.

The case against the MRS was weaker still, as even if the CSE’s argument that it failed to report internal party changes to the CSE was true, the punishment established in article 72 is initially temporary suspension, not cancellation of the party’s legal status. The vice president of the CSE clearly expressed the decision’s political and arbitrary nature when he said that the MRS had been subject to sanctions for the same omissions for many years and the CSE had run out of patience and generosity.

Biased issuing of ID cards, uncontrolled violence and use of state goods

The collapse of the bipartite logic caused the CSE to manage the registration and inscription of voters (voter/ID card issuing) in a biased way favoring the ruling party, which solicited and gave out cards expeditiously, extra-officially and free of cost. Meanwhile, we verified that citizens who applied through the normal channels faced costs and problems associated with repeated visits to the electoral institution and in many cases never received their voter card. One E&T survey taken among queues of citizens trying to collect their cards in Managua shortly before the elections demonstrated that 80% of around 400 people were there for the third time. A similar percentage had a preference for the opposition.

Similarly, the CSE and the Office of Electoral Ombudsperson made absolutely no effort to stop or punish the clear violation of articles 107, 173 and 175 of the Electoral Law, which refer to the use of public buildings and state resources for the ruling party’s campaign. Similar inertia was noted in reference to the acts of violence deployed during the electoral campaigns. These were limited to actions and injuries by party supporters and activists, but were directed by the FSLN’s candidate for mayor in municipalities such as León.

Non-accreditation of observers

The relevant factors during election day voting were the non-accreditation of observers, the expulsion of observers from public places, intimidating patrolling in various neighborhoods of at least Managua and León, and the expulsion of party monitors.

From the early part of the day, the expulsion of identified observers and absolute refusal to allow them to remain in the JRVs was reported in over half the country’s voting centers. Expulsion of observers from public spaces within the voting centers flagrantly violated the conditions for transparency in the counting and data transmission processes. In the case of Managua, their expulsion allowed several observers to note intimidating patrols of people armed with clubs, machetes and firearms in the streets close to some 25 JRVs in at least 5 neighborhoods.

Given the refusal to accredit them, many E&T observers were instructed to vote late, even at the end of the day. This enabled them to observe the early closure of 10% of the JRVs on the national level and 20% in Managua, compared to 2% and 1%, respectively, in the 1996 general elections. We also observed the absence of PLC party monitors in approximately 15% of the JRVs, compared to a presence in 99.5% of the JRVs in the eight previous elections.

Party monitors expelled

In several cases we witnessed the expulsion of a party monitor by the electoral police or JRV table personnel, as it occurred at the same time the observer was expelled.

Party monitors faced similar restrictions on the CEM and CED level. The Electoral Law was flagrantly violated with respect the accreditation of opposition monitors, who are supposed to receive their credentials at least ten days before the elections, as stipulated in article 28. In municipalities such as Managua and León, however, the credentials were handed over at dawn of the exhausting election day, following intense and wearing negotiations, which subsequently facilitated the annulling of those same monitors through force and pressure in all electoral bodies.

In Managua, the para-institutional takeover of the Computation Center by uniformed FSLN activists, with corresponding restrictions on the access and operating capacity of the opposition monitors, reduced the conditions necessary for transparency. This was called “Operation Danto II” [the first Operation Danto was a massive military operation in thelate eigties that was costly in human lives but whose success signalled the definitive strategic defeat of the contras] and has been widely documented. Even CSE magistrates complained about the lack of access to data and documents.

Violation of the electoral law

The following is a list of the CSE’s violations of the Electoral Law with respect to transparency on election day, starting with the vote count:

• Non-accreditation of observers (article 10). This occurred in 100% of the JRVs, CEMs, CEDs and the CSE. In 25% of those cases, uniformed observers were escorted out of the voting center, including spaces legally established as open to the public.

• Early closure of JRVs (article 114). This occurred in 10% of the country’s JRVs and in 20% of those in Managua.

• Expulsion of opposition monitors, meaning they were not present during vote counting (articles 28, 29, 123, 127). This occurred in at least 10% of the country’s JRVs.

• Failure to post the ballot count results at the JRV (article 129). This occurred in approximately 12% of JRVs, compared to 2% in previous years.

• Vote annulment. Although the CSE has not presented official figures, it is estimated that annulled ballots increased by 300%, with a significant correlation of part or all of the vote annulled in those JRVs from which party monitors were expelled, which historically favored the opposition. Several cases are also known of government party monitors voting twice, first in the JVR where they were working and then again in their normal JRV. In some municipalities, such as León, Masaya and Managua, this occurred so frequently it leads to suspicion that it was a party line.

• The total results were not published by JRV, as stipulated in article 129. In the case of Managua, the results in 31% of the JRVs have yet to be published at all. These correspond to JRVs that are historically opposition bastions, where the FSLN obtained a maximum of 33% in previous elections and an average of less than 20%. This means that the CSE failed to publish the results from JRVs in which the FSLN tends to attract just two out of every ten votes. In 95% of the JRVs in Managua whose votes were not published, the FSLN has historically lost to the opposition by margins of between 2 to 1 and 8 to 1. This means that the non-presentation of results from those JRVs was not a random phenomenon, but rather biased and systematic.

Turning acceptance of the
results into an act of faith

With all of these violations, the CSE not only turned acceptance of its final results into an act of faith, but also made it impossible to present appeals for arithmetic review or challenges of inconsistencies among the official tally copies [including those kept by party monitors].

Other curious cases have emerged from the limited information published by the CSE. For example, there were more valid votes than voters registered in at least one municipality (Nindirí). Meanwhile, in Managua the total number of valid votes for the FSLN’s candidate for mayor exceeded the number registered for the President of the Republic just two years ago and was double the number for the two previous mayors elected from the same party. Investigative journalism has revealed at least three JRVs where the FSLN was announced as having won with 400 votes, with none of the opposition parties achieving a single vote, and in which the JRV did not even have 400 voters on its electoral rolls. The tallies in the possession of the opposition parties showed almost the opposite, with results very favorable to the opposition.

Around 50 voters on the electoral rolls corresponding to those JRVs said on camera that they had voted against the FSLN. The CSE didn’t even investigate these accusations of clear electoral crimes and presents the 400 to 0 results as the last known results for these JRVs. One example is JRV 6055380, where the most votes achieved by the FSLN was 55 in 2006.

• Other electoral crimes that must be mentioned include the substitution of electoral materials from the JRV turned in to the CEM, including false official tallies.

• The CSE eliminated the period and the due process for presenting appeals for review by the PLC, defining them as “not presented.” This action is a violation of practically the whole of Title XII of the Electoral Law.

• In response to protests from certain parties and candidates, it was noticed at the site that government people had mobilized, armed and led low-income citizens and at-risk youths to de facto stop the right to protest in at least five of the country’s municipalities.

Fraud in 33 municipalities

A partial list of municipalities in which, in E&T’s opinion, the people’s will was violated in the election of the mayor or councilors based on all these different fraudulent maneuvers includes the following 33 municipalities:

Managua, Ticuantepe, Chinandega, Chichigalpa, Cinco Pinos, El Viejo, Corinto, Nandasmo, Diriomo, Nandaime, León, La Concordia, Ocotal, San Lucas, Pueblo Nuevo, Wiwilí-Jinotega, Jinotega, Nindirí, Masaya, La Concepción, Juigalpa, Santo Tomás, La Libertad, San Francisco de Cuapa, Laguna de Perlas, Teustepe, Sébaco, Rivas, Jalapa, Totogalpa, San Juan de Río Coco, San Dionisio andAltagracia.

It’s almost impossible to work
out how people actually voted

Given the immensity and the very nature of the irregularities and the evident tendency towards electoral fraud, ranging from intimidation to bias in enabling voters, from expulsion of observers and party monitors to annulling of votes and non-application of each of the articles of the Electoral Law that should ensure the transparency of vote counting, it is impossible to reliably piece together from the ruins of a vitiated process what the will of the people actually was.

The differences found by comparing tallies [those officially turned in to the CEM by the JRV with those of party monitors] will not be resolved by opening the bags of ballots, given that custody of the materials has been in the hands of a party-biased CSE that cannot respond for their fidelity. It particularly will not resolve the issue of ballots marked up after they had been cast in order to have them annulled (a strategy that made the difference in León, for example).

However, that is what the PLC is asking for, in what amounts to the first hint of a political solution to the national crisis of governance and financial sustainability resulting from this fraud. Partial annulments can be envisioned in those municipalities where the people’s will was most blatantly transgressed. The mechanisms available for that range from appeals on the grounds of unconstitutionality or constitutional protection—which can also serve to force an electoral reform based on the annulment of articles that give the system a party bias—to political negotiations. E&T has expressed the need for transparent negotiations in full view of the citizenry so as not to erode even further the credibility of the electoral system and the peaceful electoral way of solving power disputes.

Another electoral system is possible

Another proposal being made is to replace the electoral magistrates, which while necessary is not enough in itself, as the legal framework would continue facilitating repeats of what happened in November 2008, with greater or lesser brazenness. The most urgent thing is therefore the electoral reform of a collapsed system that is too incapacitated and discredited to provide the necessary guarantees.

There is a need to reach deeper and address all of the system’s problems that have been diagnosed for over ten years by all of the national and international observers that have accompanied our processes. Efforts to restore a minimum precarious balance could create more possibilities of disaster as the result of miscalculation or changing circumstances.

Building an electoral system with a credible arbiter that transparently administers and counts the votes in any electoral process, and does not reproduce or fuel party preferences, is now an almost universal achievement and is thus accessible to our country. It would also open the door to the institutional and democratic growth Nicaragua so needs to progress and leave behind its prostration and poverty.

The Ethics and Transparency Civil Group is one of Nicaragua’s most experienced national electoral observer organizations. This final report of the November 2008 municipal elections was translated by envío, which only added subtitles and clarifications in brackets for readers who may not know certain details presumed by the document.

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