Disquieting forecasts in the run-up to November 6

The director of the Ethics and Transparency Civic Group, one of three national electoral observation organizations, explains his view of the role of observer organizations, detailing the categories observers look at, and with ten days to go till election day predicts the outcome of this process. It is a valuable, eye-opening companion piece to E&T’s final evaluation, also included in this edition.

Roberto Courtney

Fifteen years ago, Ethics and Transparency (E&T), the Nicaraguan chapter of Transparency International, was only the second or third national electoral observation organization functioning in all of Latin America. Today it observes elections in three continents and advises governments and similar observation groups in some 20 countries.

Sovereignty and our right
to monitor the State

National election observation is in a strong process of evolution and expansion, developing methodologies that capitalize on its practical advantages, which include its members’ sovereignty in relation to the authorities and our basic rights to monitor the State, two elements limiting international electoral observation. For its part, international observation is also beginning to recognize the advantages of maintaining a symbiotic relationship with the national observers to improve the quality of its monitoring and contribute to a joint effort to multiply the scope of its voice in the corridors of power.

We national observers don’t see any sovereign in the electoral authorities, or in any other national authority. What we see are public employees in whom we have entrusted a mandate, with terms of reference, and whom we pay a generous salary to fulfill it. As citizens, we don’t require permits to render opinions about the work of employees and public servants. We have the right and the duty to oversee how the authorities do their job.

Cooperative and non-cooperative models

The cooperative model, in which the State works together with organized civil society, is not functioning with respect to electoral issues in Nicaragua. In a non-cooperative model, such as our current one, citizens’ rights have to be activated with greater force. In this electoral process, with the non-accreditation of national observers for the third consecutive time and the antecedent of two consecutive fraudulent elections (the 2008 municipal ones and the ones for autonomous regional governments on the Caribbean Coast in 2010), we had double the responsibilities and obligation to have a presence in all arenas we could get into. We have numerous methodologies to fulfill that task.

Electoral observation becomes all the more necessary when the electoral apparatus of a given country retreats and is put at the service of a party. The more opaque the system becomes, the more we need to work to shed light and transparency from other angles and sectors. The goal is to continually improve the quality of democracy. Democracy’s problems can only be resolved with more democracy.

Shining a light so the cockroaches run and hide

We are pursuing a prophylactic effect: observation to both prevent and document the problems we see coming, ranging from how the elections are run to how any errors and incorrect actions are handled. This is something indicated by Heisenberg’s uncertainty principle of quantum physics, which teaches that the act of observing something changes the nature of what’s being observed. When observation pursues objectives, its mere presence helps foster those objectives. Our experience teaches this every day: when we turn on the light in our kitchens at night, the cockroaches run and hide. Light and transparency help improve conditions that tend to degenerate in darkness.

Observers from the European Union and the Organization of American States came to Nicaragua with this same prophylactic logic. Right after they arrived, both missions told the electoral branch a couple of things regarding a training manual for the people running the voting tables that carried the official seal of the Supreme Electoral Council (CSE) and was being used by the governing party: “If you don’t want to find categorical criticisms in our final report about aberrant dispositions such as those that appear in this manual—telling electoral officials that there will be no observers in the vote count and there won’t be faithful copies of the count tally for the party monitors—we suggest you eliminate both dispositions.” Once warned, the CSE found a way to disavow these two crazy notions it had planned, declaring that they weren’t official dispositions, but were “apocryphal.” This is proof that there’s an important prophylactic objective in electoral observation. The mere presence of observers generates better conditions for an electoral process. Nonetheless, it remains to be seen whether the political determination to deny transparency and reliability in order to facilitate the fraudulent actions, something already taking shape in this document, will find other routes.

The importance of breaking
with the history of violence

One thing all national observers are doing in this process is warning about the importance of protecting the electoral option in Nicaragua. We live in a country that has had a war every 14 years on average in its over 180 years of history, and 30 consecutive years of peace only once during that same period of time… in the 19th century! These military conflicts have always been rooted in disputes over power, over who’s running the show.

In such a country it’s very important to have an open and clean electoral path, regardless of whether at a specific moment citizens’ preference may coincide with the preference of the electoral apparatus, as could happen in this presidential election. There are many polls and their margins favoring one party are too sizable to be discarded; they seem to be realistic forecasts. Even so, it’s still strategically important that the electoral apparatus not be wed to a predicted result for the day, should it arise, in which things change. It has to be committed to organizing a transparent process to avoid our history’s recurring episodes, when changing the person at the top has come at the price of a lot of spilt blood, condemning us to the poverty suffered by peoples who dedicate themselves to shooting each other at virtually schedulable intervals.

We want every voter to be an observer

Ethics & Transparency didn’t request observer accreditation from the CSE because it wanted to emphasize the idea of citizens’ sovereignty, which doesn’t require special permission to oversee the State. We’re very interested in each Nicaraguan being an observer; a bold and very sustainable initiative that we hope will be a legacy of these elections. Even if some are experiencing this election with the fanaticism with which they would watch a baseball game and end up pleased with the result, independent of the quality of the umpires, it’s important to announce the rules of a fair game and teach their importance. This awareness could generate the conditions for a change in our electoral system, which is very necessary, and thus keep the peaceful options open.

Of the 13 international standards, or minimum indicators, of the electoral process quality measurable so far, the electoral system and its process have basically flunked 11. It has only saved itself with respect to violence and freedom of expression… and only up to now. This obliges us to be even more responsible in overseeing the whole process, including the handling of the post-electoral crisis resulting from a process that has given such grim signals. That’s why we view it as strategic to make each Nicaraguan an observer. Our desire is to take the observation profession away from the sphere of hazy techniques so that everyone knows how to do it.

It’s very simple, and while there are more sophisticated techniques, each Nicaraguan is perfectly capable of being a good observer. We’ve made the effort to repeat how to observe everywhere we have the chance, sharing with people on a massive scale the same contents we use to train our own observers. We’ve warned the citizenry what to watch for to become observers.

The heart of observing and grading an electoral process is whether or not it fulfills certain minimum requisites that revolve around four key elements or categories: participation, campaigns, voting and the ballot count.

Brazen signs of bias in issuing ID/voter cards

The first thing that has to be observed is participation. A universal principle of democracy is that every citizen who’s going to live under an authority has the right to elect that authority. The challenge is how the electoral apparatus generates the conditions for the entire eligible citizenry to vote. In Nicaragua the method for this is the ID/voter card.

The fact that not every Nicaraguan has a card could be because people are extremely poor and isolated, or because some authorities are very incompetent in guaranteeing this right. But such reasons do not explain the current problem. The signs indicate to us that the electoral apparatus has a political bias in the issuing of cards that’s about marginal¬izing certain sectors of the population.

Some of these signs are very brazen, such as issuing in the months well ahead of the elections a free ID/voter card to public employees, who by definition have the most interest in seeing the governing party (their employer) win. Others include the fact that none of the municipal card-processing offices were open until two months before the elections, some never opened at all, many of those that did open declared they had no paper supplies and those that did gave the stub for retrieving the card once it was ready only to individuals who came to request it bearing a letter of recommendation from the FSLN’s Councils of Citizens’ Power (CPCs).

At the very same time these official public offices had their doors closed or were claiming obstacles to issuing ID cards, the governing party’s office in many municipalities was processing card requests. Party activists even knocked on people’s doors offering home delivery of the card to its sympathizers or people whose vote they wanted to win over.

According to our analysis, a minimum of 2% to 5% of eligible Nicaraguan voters (some 200,000) were left outside the game because the electoral branch didn’t give them their ID/voter card for a political reason: their opposition to the governing party. As small as it may seem, this amount makes any election non-certifiable, because it is within such margins of abstention that the election of a handful of legislative representatives is typically decided.

The system squeaked by on the issue of violence and access to the street and media

The second element that has to be observed is the electoral campaigns. In the countries whose elections one dreams about, campaigns are for learning about and debating programs and national issues, and candidates report on their campaign financing. In such countries the electoral apparatus that oversees these campaigns and assures that state goods aren’t abused is a neutral institution. Furthermore, the candidacies competing against each other are recognized as legal by all contenders. In fact, this dream world is more common in Latin American than we might imagine. Here, however, we must be satisfied to see that at least the minimums are met.

What are the two campaign minimums that must be met? First, that it is free of violence, above all officially instigated violence; and, second, that no party’s access to the streets and the media is discriminated against. Nicaragua’s system squeaks by with a passing grade on those two but flunks the rest. The abuse of state goods is visible everywhere, so much so that it’s virtually impossible to find a school or public office without FSLN flags and propaganda. But as governments in Nicaragua have never abstained from using public resources for their political proselytism, and this government has done no worse than aggravate that tendency, it would be hard to disqualify an election in our country for that reason.

Regarding campaign financing, the only prohibition in our Electoral Law is article 103, which absolutely prohibits the use of money from companies in which the State participates, or from a foreign State. Does the ALBA model respect this legal disposition in our country?

As for the independence of the electoral authority, it’s not even worth mentioning. Regarding the legality of the candidacies, let’s take a look at this double standard: the electoral magistrates, who for years have been pandering to whatever needs to be done to weaken Ortega’s opponents, let the candidate/President escape two constitutional bars on running for consecutive reelection while threatening 50 PLI Alliance legislative candidates with inhibition if they win, well after accepting their inscription..

The entire electoral apparatus
is in the governing party’s hands

The third element that has to be observed is how the cast vote is dealt with: if everyone is able to vote, if the bars on voting twice work and if the vote is actually secret. This is the real nut of the issue, because both participation and campaigns refer to conditions of competition and hypothetical votes. In Nicaragua, with the CSE’s political bias and illegalities, the entire electoral apparatus is in the governing party’s hands, with very few spaces in which other actors can oversee or document what’s going on, and even those are systematically and constantly shut down. This multiplies the possibilities of distorting or manipulating the votes cast as well as facilitating votes and counts at the CSE-FSLN’s discretion.

Inking voters’ thumb with indelible ink after they’ve voted is virtually the only mechanism available to prevent someone from voting twice. Knowing that nearly 100,000 people from the government apparatus received a free new ID/voter card without having to give up their old one makes this inking even more indispensible. This measure may seem a trifle, but if it’s not taken and many of those people are able to vote twice we would be seeing a major irregularity.

Even if voters’ thumbs are well-inked to prevent a double or triple vote, the international and national menu contains infinite other mechanisms, some less obvious and more insidious, for altering the casting of votes when independent or opposition monitors aren’t available and the only thing standing in the perpetrators’ way is their own imagination or self-control.

The ballot count is only relevant if
the right to monitor it is respected

The fourth element to observe—the final ballot count—is also essential. But like voting itself, this observable element only acquires relevance if the full right to monitor the count is respected. Without monitors, counts can be both official and false at the same time, and their publication mere impertinence. If we have monitoring as the law’s logic mandates, we must seize the few elements of transparency that monitoring offers. In other countries, voting centers are open to the public during the count. In Nicaragua that’s precisely when the doors are shut and everybody’s ushered out. In the 2008 municipal elections, even the opposition party monitors were forced out in 10% of the voting centers.

Our Electoral Law establishes that the final scrutiny of the results of each voting table must be posted outside the voting center door so every citizen can see it, so we need to observe whether that’s done or not. With respect to the results, what must be observed are the irregularities that can annul the vote count. Such annulments should always be few and random. In the 2008 municipal elections, we verified that the results were clean at 91% of the voting tables and were not in 9%. That might seem an insignificant percentage, but it becomes untenable when we discover the tendency at the tables whose results were tainted: in every one of them the results that were annulled didn’t favor the governing party. So any irregularities have to be few and random, which means that if it rains it has to rain evenly on all roofs. If it only rains on some roofs, those of the governing party’s lead competition, it means it wasn’t rain, but a maneuver clearly observable as a sign of fraud.

The monitors deserve their own chapter.

The poor design of Nicaragua’s system and the CSE’s violations of its own laws have generated a situation in which three parties will have one representative between them on only 4,000 of the 13,000 voting tables and in 30 of the 153 municipalities in these elections. And that’s at a maximum. This is serious because the tables are where elections are managed and decisions about what ballots or entire processes to annul are made by the three people running each of them. Having no one representing them on all the other tables, and at best only one person out of the three in less than a third of them, puts the opposition in an extremely disadvantageous position. Given this, the requisite that they at least have monitors representing them at all voting tables becomes crucial. We’ve explained this to the observers, given the CSE’s past efforts to prevent full monitoring of these elections.

The CSE never announced the party affiliation of the three people managing each voting table, although obliged to by law. The suspicion that they were virtually monopolized by the FSLN and its allies was justified and aggravates the circumstances in which the process is being played out.

The Electoral Law also obliges the CSE to provide credentials to all the table monitors, to which each party has a right, no later than 10 days before the elections. Yet 10 days before these elections, the CSE had yet to issue even one credential. Way late in the game, it ordered that all credentials had to be requested in Managua and in a complex computer program, thus generating new obstacles to avoid complying with the law. We can expect the CSE to issue the credentials at the last minute, and they will surely be full of errors that lead to their annulment, when the normal thing is for each party to be issued a quota of credentials to fill out itself. As it is, some 40% of the voting tables could end up with no opposition party monitors on election day. Both the national and the international observers have our eye on this point, because in a totally partisan system like ours, monitoring is crucial to being able to certify the transparency of an electoral process.

Only if there are acceptable conditions for the vote, including the presence of all monitors at all tables, will we evaluate the ballot count. Insofar as the previous conditions don’t exist this time, there can’t be any guarantees that the count will be authentic, no matter how much the CSE dresses it up in all the formalities.

The European Mission is very capable

The first declarations by the European Union mission chiefs upon arriving in Nicaragua have been very incisive. It’s a mission with very capable people. Given the circumstances of our electoral process, and knowing what their manuals and their obligations establish, there are signs that the international observers may not qualify this process as free, fair and honest. I think it’s already safe to say that the preliminary international observation report will declare that the electoral apparatus hasn’t even obeyed its own laws, much less international standards, and for that reason lacks reliability.

These international missions have already disqualified Nicaragua’s electoral system in circumstances far less extreme than the current ones. Now, I don’t see how the CSE can save itself from a new disqualification. And we need to keep in mind that the relevance of what the international observers say isn’t just how it sounds in Nicaragua but how it sounds in the capitals of the countries in which Nicaragua’s government wants to look good, which is why it invited them.

My forecast

While the polls show the governing party’s presidential candidate with a significant lead, my forecast, looking at the well-known and amply audited electoral system 10 days before election day, is that there will be fraud in the vote count, especially in the election of National Assembly representatives. We believe it’s inevitable that an electoral apparatus like the one we have today will inflate those results by design. And it’s reasonable to expect that this inflation will be decisive in the victories of at least 10 governing party legislative candidates.

I don’t think it’s a foolhardy prediction, for a very simple reason: We have the same modus operandi in the CSE and its electoral apparatus as in 2008, except it’s worse. Three years after those fraudulent elections, the governing party has even greater control over the departmental and municipal electoral authorities and over the voting tables, where politics functions with very local dynamics: everyone knows each other and knows where their political sympathies lie. It’s safe to say that after getting a simple parliamentary majority in the first count, they’ll try for a qualified parliamentary majority, then will search for enough votes to get even more representatives. That’s how the human condition works: they’ll be counting alone, unsupervised, and the only thing that will limit them will be their conscience and their discretion. But in the absence of controls, the human tendency is to abandon control and discretion. The party put them in the post; it has given them a free hand for months; it didn’t establish any counterweights and “the people” are applauding them; that doesn’t leave much room for developing self-control.

So that’s what’s going to happen; this is what will win out over caution to avoid the governing party having to pay the political cost of dirtying the process. In an electoral scenario such as the one that has been shaping up, morality and precaution would require locks, controls and counterweights that don’t exist and official messages that haven’t been given.

It is logical to think that everything will be all right at the end of this process because it suits a President who will very probably need legitimacy, but, in politics, logic is always beaten out by empiricism. The 2008 municipal elections are a perfect example: the FSLN’s real results weren’t at all bad: it didn’t win all 153 mayoral seats, but it did win 60-some of them, a perfectly respectable result, particularly when it won the presidential elections two years earlier with only 38%. It was a good starting point from which to keep advancing. So why commit fraud to win 40-odd more? Furthermore, logic tells us that there shouldn’t have been fraud in those municipal elections, because it would put us all on alert for the general elections three years later, as we are in fact today.

Nonetheless, logic didn’t win out, just as it didn’t in the Caribbean regional elections in March of last year. We made the mistake of thinking that after everything that happened in 2008, those elections would be impeccable, because the Council members elected in the two autonomous regions there don’t matter so much; they’re little more than the way the national political class has found to give its most popular local leaders there a post and not have them demanding much more. Those elections were thus a magnificent opportunity for the CSE to clean up its act, to wash its hands of what happened in 2008. It needed to do so, but didn’t. The European Union qualified those elections as a fraud.

No matter what, we have to react peacefully

So now, in 2011, irregularities will be inevitable. I know this is a very negative prediction. We’re saying it to make clear to all Nicaraguans that our electoral apparatus has collapsed. It may well be that the governing party has a majority among the citizenry, but the future is always dynamic. Today’s situation doesn’t change Nicaragua’s urgent need to install an electoral apparatus with so much credibility that, when that popularity shifts, if indeed it does, we can change things through civic means, through elections, instead of through the tragic path we’ve adopted so many times before in Nicaragua, which has impoverished us so severely. No matter how disastrous and negative the electoral process might be, and this is definitely one possible scenario, we’re calling on people to respond in a civilized and peaceful manner. Not because indignation wouldn’t be justified, but because we’re already on this healthier path. Don’t get me wrong; this isn’t a call for indifference, just to let such things happen, but rather to try to fix them without violence and bloodshed, no matter how difficult that may feel.

In any event, if the electoral apparatus doesn’t provide guarantees for monitoring, if monitors aren’t present at all voting tables, and if not all monitors receive a valid copy of the tally, nobody should be surprised if at 7pm on the night of Sunday, November 6, or even before, we declare that the process lacks guarantees to be appraised, which would invalidate the whole thing.

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