Ethics and Transparency: The published results don’t merit credibility

Denied official entry to pollling places in two previous elections, E&T staff, traditional volunteer observers and some 78,000 observant Nicaraguan voters defied the governing party’s effort to pull off an unprecedented fraud unseen. This report dittoes the EU findings and adds elucidting details of its own.

Ethics and Transparency

Working under a concept of sovereignty and basic rights, the Ethics and Transparency Civic Group did not request authorization from the Supreme Electoral Council (CSE) and based its work on its 15 years of experience observing 32 elections around the world and 10 in Nicaragua. The observation methodology used was that of Appraising the Fulfillment of Minimum Quality Standards, with 18 indicators in the 4 key areas of the electoral process, including suffrage and ballot counts. In making this Final Report available to the citizenry, we would like to thank all sectors for the support and solidarity received, and the more than 78,000 Nicaraguans who contributed to the National Observation under the motto of Each Nicaraguan an Observer.

Background

At 6:30pm on November 6, with the voting concluded and the counting started, the Ethics and Transparency Civic Group (E&T) presented its Preliminary Technical Report, summarizing the process as follows:

“...The lack of solutions to the basic preliminary issues meant going into elections with magistrates kept in their posts by the exclusive decision (with no legal pretext whatever) of one of the presidential candidates, the same one who later, in open violation of the Constitution, was accepted as a candidate by the CSE as the fruit of a ‘procedure’ by some Supreme Court justices and CSE magistrates that took less than 72 hours and violated the most elemental constitutional doctrine, which is that the Magna Charta may only be reformed by the National Assembly. As a result, a candidacy expressly prohibited by two constitutional locks was permitted and the credibility of the electoral process was decisively undermined.

“Equally negative and also very explicative of the loss of quality of the process and the open favoritism of the electoral authorities toward the President of the Republic and illegal presidential candidate was that the latter, in addition to granting an extension of the Electoral Magistrates’ functions until further notice, also protected them from the most minimal actions of the State institutions of control after several years of embezzlement of a third of the annual CSE budget by this collegial body was revealed with ample and clear documentation, including fake invoices and money orders, tapes, videos and sworn declarations. This immunity also impeded their required dismissal for the electoral fraud committed in 2008. All this resulted in an electoral process that reached this Election Day with serious flaws and is not certifiable.

“With only the ballot count pending and considering that the measuring of the indicators related to the three other issues of universal appraisal with respect to electoral observation is already conclusive, the Ethics and Transparency Civic Group makes public its appraisal of the first 13 indicators related to the issues of participation, clean campaigns and guarantees of suffrage. Ethics and Transparency observes systematic and voluntary violation and incompliance by the Nicaraguan State in 11 of these 13 indicators. The incompliance of these 11 international minimums on the issues obliges us to declare that the current electoral process is not fair, honest or credible. On the contrary, it presents indications of fraud and intentionally fails to comply with minimum requisites of quality, resulting in the inexistence of minimum guarantees regarding the fidelity and transparency of the ballot counts, which in the criterion of this organization become ‘unreliable’.”

We also stated that we would continue observing the process. In this document to the Nicaraguan citizenry, we are submitting the final appraisal of the 2011 electoral process, now including the evaluation of the pending indicators (those related to the ballot count and challenges), as well as the incorporation of newly available elements regarding the indicators already evaluated in the Preliminary Technical Report.

Executive summary

We confirm our preliminary appraisal that this electoral process in 2011 was neither fair nor honest, having failed 17 of 18 measurable indicators and each of the 4 areas subject to technical evaluation in an electoral process. The published results do not merit credibility given the serious, systematic and intentional irregularities during their emission and ballot counts and even less in light of the irregularities of the earlier stages, in which at least 6% of the electorate1 was rendered unable to participate or impeded from participating by the Electoral apparatus during the voter registration phase. Based on the above, this organization cannot certify the election results, and establishes that the problems impeding this certification are to no extent accidental but are the fruit of the CSE’s political volition to generate a process without minimum guarantees or equanimity, to this end recurring to systematic violations of the national legislation and of 17 of the 18 minimum requirements on electoral issues.

Additionally, throughout the electoral process, E&T issued four analysis reports and posed the existence of a Modus Operandi (MO) by the CSE since 2008 to facilitate fraud of the people’s will. Since May, with the greatest scientific rigor, it presented to the public its hypothesis about how fraud was being conducted in Nicaragua, noting the events and stages, the Vote Receiving Juntas (JRVs) at special risk, and the forecasted corollary. All was fulfilled with enormous exactitude.

The CSE systematically gave the governing party control of the Municipal and Departmental Electoral Councils (CEDs and CEMs) and the JRVs, almost totally eliminating any role for the opposition; it even went to the extreme of not publishing the names or party representation of those making up the three-member JRVs. 100% of the results are not auditable because they were not published JRV by JRV and the opposition parties were prevented from monitoring at least 30% of the JRVs. In those same JRVs the FSLN obtained up to 30% more votes than it did in places where at least the ballot count for National Assembly representatives was duly monitored. It is also revealing that, for the first time in the past 50 years in over 200 elections in a presidentialist electoral regime anywhere in the world, there are more votes for legislators than for the President. In the present case, E&T considers that both elections involve significant alterations of the sums in favor of the FSLN by at least 150,000 votes (8 to 12 legislative seats), which represent the minimum of seats fraudulently assigned in the present conditions of the electoral system’s opacity and dysfunction.

Technical analysis of minimum requirements

Areas of Evaluation:
1. Universal participation (3 indicators)
2. Clean campaigns (6 indicators)
3. Suffrage with guarantees (4 indicators)
4. Transparent counts - respect for the people’s will (5 indicators)

Category 1: Universal participation
Indicators to be evaluated

1. Processing of ID/voter card in line with the requisites established by law and without political discrimination.
2. Preparation and issuing of ID/voter card, or substitute document when the citizen has registration problems, in reasonable time.
3. Faithful and definitive publication of the electoral rolls in which all registered voters are included and are located at the JRV [voting table] corresponding to their domicile.

Evaluation

1. We have denounced the functioning of a para-state governing party structure in all of the country’s munici¬palities, which is in charge of processing the voting documents without the authorities having observable controls over abuses such as registering foreigners and minors, of which numerous cases are known, in violation of various articles of the Electoral Law (articles 173 to 175, for example). The cases total 198,073, according to the 2005 Population Census versus the definitive 2011 Electoral Role. In addition, an estimated 100,000 public employees and other individuals close to the governing party also preferentially received, as the CSE itself declared, a second voting document, and in 80% of the cases the previous document was not recovered from these individuals.

2. All of the official structures for issuing voting documents remained closed until up to three months before the elections and their poor functioning since then includes documented complaints of not receiving paperwork, not issuing voting documents and other forms of denying the vote to an estimated minimum of 198,073 individuals2. It is impossible to certify the CSE’s alleged issuance of approximately 300,000 other voting documents.

3. The Electoral Roll was not audited and there are no reliable controls over third-party use of the voting document and right to vote of the approximately 30% of the roll consisting of citizens who are living abroad or deceased. The Roll Verification process became an exercise by the electoral authority to intensify governing party control over the citizenry in general and over the administrative structure of the elections. In that process, the CSE inflated the verification participation, which was under 15% of the roll, declaring a 60% participation (of course, providing no supporting documentation whatever in a process in which monitoring was denied). Given the background of fraud in the counting of 40 municipalities in the 2008 elections by the same magistrates, we consider that making evident the magistrates’ bias and governing party preference and absurdly inflating the data constituted an institutional effort to foster abstention among the opposition sectors.

4.

Conclusion:

We estimate that a minimum of 198,073 citizens of voting age were denied the right to citizenship and to the vote in these elections, in the majority of cases for reasons of their presumed opposition affiliation. It is impossible to quantify either the dissuasive effects of the CSE’s biased actions on voting or the erosion of controls on double voting, but both irregularities constitute very grave violations. Based on the above, we consider that the electoral process does not fulfill minimum universal requisites and guaran¬tees with respect to Civic Participation.

Category 2: Clean campaign
Indicators to be evaluated

1. Candidacies in strict accordance with the Constitution and the Law.
2. Electoral authority acting capably and impartially.
3. Electoral campaigns and periods free of violence.
4. Non-use of state goods for party proselytizing.
5. Access to the media by all parties.
6. Basic transparency in campaign funding.

Evaluation

1. The most elemental constitutional principle, recognized at the world level, that the Magna Charta may only be abrogated by a very special legislative procedure, was transgressed: through a 72-hour weekend maneuver, some Supreme Court justices and Supreme Electoral Council magistrates met behind the back of others and invalidated the double lock impeding the candidacy of the current President. Later, the CSE eliminated candidates of one Alliance after the time established and not based on recognized grounds, then both institutions threatened that the candidates the people chose from that Alliance could be removed due to an alleged extemporaneous internal dispute by one of the Alliance members.

2. With its management of the process extended by the decision of one of the presidential candidates, the CSE left no doubt at any time as to its favoritism toward that candidate and the governing party, permitting his registration as a candidate in violation of the Constitution, eliminating and threatening candidacies of other alliances and turning control of the administrative and jurisdictional authorities over to the governing party, among other questionable actions detected by this mission. At times these actions reached unprecedented levels, such as when the CSE left abuse of state goods out of the Electoral Ethics manual (an issue that article 175 of the Electoral Law itself punishes with two years in jail) or actively and in diverse ways impeded the accreditation and functioning of party monitors. Also notable is the express violation of the law with respect to electoral observation, which was reduced to “accompaniment” and denied to nationals not loyal to the governing party.

3. Our Preliminary Technical Report published the night of the elections stated: “In general terms and considering the sad regional standards, where even deaths are common during elections, the Nicaraguan case compares favorably so far. The absence of aggressions against journalists stands out.” Given the execution of at least four people by the Police, CSE officials and political party personalities the night following the elections as a result of the irregular electoral process, plus 18 other cases of violence related to the elections (including the burning of 30 JRVs) pointed out by recognized human rights organizations, this appraisal has ceased being positive.

4. It is difficult to find a single public office or school anywhere in the country that is free of the government’s proselytizing messages or its party flags. The transporting and presence in proselytizing activities of uniformed youths of high school age and even younger during class hours is openly promoted and executed, with abundant indications that this is accompanied by better grades and other payments to the participants. Various public spaces, such as traffic circles, have permanently installed pro-government propaganda and personnel, without similar opportunities for the other parties. State vehicles and offices are openly in charge of logistics for the proselytizing activities, including open proselytism in rescue and emergency work that occurred during the campaign. The list of violations and irregularities is long because of the systematic Party-State confusion the government promotes to the detriment of controls and limits applicable to both.

5. In general, there was a plural media spectrum open to freedom of expression. But there was total incompliance with article 90 of the Electoral Law, which establishes opposition party access to 30 minutes a day on the state television channels and radio stations.

6. The enormous difference in campaign spending estimated by this observer group, in which the governing party spent 15 times more than all its competitors combined in all activities related to the electoral campaign, is not independent of the problem of State-party confusion, in that a private business of mixed capital mainly from the State of Venezuela is in charge of paying public employees and capitalizing state programs through the governing party to the tune of US$500 million annually in actions not monitored by any national institution. It is evident that part of this money is being used to support the governing party’s electoral campaign. Article 103 of the Nicaraguan Electoral Law prohibits donations to political parties by state or mixed (national or foreign) businesses. But no authority seems to have realized this is happening.

Conclusion

Five of the 6 indicators and the corresponding minimum requisites have been openly violated or not complied with. The climate of freedom of expression was reasonable, despite the mentioned violations of the Electoral Law. The issue of violence, originally approved, decayed as a fruit of the four executions perpetrated by electoral authorities, activists and police officers under the influence of the irregular process. On the issues of respect for the legality of candidates, impartiality of authorities, abuse of state goods and transparency in campaign funding, the incompliance of 5 minimum requisites by the Nicaraguan State and its electoral authorities is evident. Based on the above, we consider that the Electoral Process does not fulfill the requisites and minimum universal guarantees for Clean Electoral Campaigns.

Category 3: Suffrage with guarantees
Indicators to be evaluated

1. The make-up of the Departmental and Municipal Electoral Councils (CED and CEM) and Vote Reception Juntas, or voting tables (JRVs) in accordance with the law and without manipulations.
2. Presence of party monitors from all political parties in all of the electoral system’s key activities, especially the ballot counts and challenges.
3. The application of quality indelible ink to all voters and the use of other locks to impede double voting.
4. The conditions to exercise a secret vote.

Evaluation

1. The law regarding the proper setting up of the CSE’s key administrative and jurisdictional authorities, known as Departmental and Municipal Electoral Councils (CEDs and CEMs), was violated in that the governing party alliance was granted an illegal second membership in those 3-person bodies in over 33% of the cases. Furthermore, two parties were denied their respective quota. In the case of the PLI, its quota in the CEDs was 0% instead of 33%. The most flagrant violation occurred at the level of the JRVs, whose composition was not even published.

2. From the outset, two parties were arbitrarily denied accreditation of their national monitors, with the CSE granting itself an inexistent veto right. The CSE also held up accreditation and restricted access by the remaining monitors from various entities to numerous processes, the most serious one being the verification process in July, in which monitoring was totally and absolutely blocked. Instead of issuing the party JRV monitors their credentials 10 days before the vote, as established in article 28 of the law, the remaining 50% of the nearly 13,000 credentials to work in the JRVs corresponding to each of two opposition parties were delivered to them less than 24 hours before the elections, and with numerous errors, thus making it impossible to monitor over 20% of the JRVs at a national level. Combined with other measures such as expulsion [of monitors] and the lack of legible copies of the ballot count tally sheets, this high percentage can only grow. (For more information, see indicator 1 of the next section.)

3. Although the ink was of good quality, the CSE regulated a light application (only the finger tip), contrary to all previous elections that ensured application to the visible side of the finger and cuticle, making it difficult to remove. Members of almost 70% of the JRVs refused the monitors access until after the JRV was set up, so they were unable to guarantee that the ballot box was empty at the start of voting. Security requisites and locks (signatures and codes on the reverse side of the ballots) were eliminated and the CSE also pre-generated the security code, previously established in each JRV by its own members. This opened the possibility of ballot substitution. No explanations were given for these dangerous changes.

4. The positioning of the secret voting booths in the JRVs was systematically changed with respect to previous years. We found in the observation of our scientific sample that 55% of the JRVs did not provide conditions for exercising a secret vote, principally due to the positioning of the booths.

CONCLUSION

There were grave and systematic violations related to the four indicators of minimum requisites related to suffrage with guarantees. Based on that, we consider that the Electoral Process did not comply with the minimum universal requisites with respect to Suffrage Guar¬antees.

Category 4: Transparent ballot counts
Indicators to be evaluated

1. The counting of votes in the presence of party monitors, with each party issued a faithful copy of the count tally sheet.
2. No votes or JRVs are eliminated based on party preference.
3. Immediate publication of the results on the outside wall of the voting center and access to the population to see them.
4. The CSE’s publication of 100% of the voting results, JRV by JRV, within a minimum reasonable time.
5. Appeals are handled with due process and transparency.

Evaluation

1. In at least 20% of the JRVs, the CSE, using various maneuvers, did not accredit monitors of at least three parties. At least two of them had shown the National Observers their complete list on time and in the proper form from 20 days prior to the elections. In an additional 15% of the JRVs some opposition party monitor was expelled before the ballot count. In the case of the PLI, it was not given a legible copy of the tally in at least 35% of the JRVs in which it succeeded in having a presence. More than 70% of the JRVs were set up or opened ahead of time, closing the ballot boxes without giving the monitors a chance to verify whether or not they were empty before the voting commenced. These facts coincide with citizen observations and denunciations, 49% of which note the entry of table members and the FSLN monitor prior to the official creation of the JRV, while the monitors for the other political alliances or organizations were denied entry. Moreover, we found that in 75% of the JRVs audited3, more votes were recorded for legislative candidates (both national and departmental candidates, but especially the latter) than for President, which is atypical in Nicaragua’s electoral history4. This percentage increased to 86%5 for the JRVs at risk. 56% of the audited tallies do not provide information about valid votes and 59% have no information about annulled votes, again an atypical situation in this electoral process.

2. Given the monitoring problems and other problems noted, it is impossible to certify the fulfillment of this requisite, particularly given the systematic elimination of opposition monitors and of controls such as the security code on the ballots (now decided ahead of time by the CSE and not on election morning by the JRV). Nonetheless, the sample taken reveals important findings. In 18% of the JRVs no vote scrutiny was done; we find that in the JRVs at risk approximately 71,500 citizens were unable to vote. Furthermore, at least 98 documented cases are known in the JRVs of more votes than voters and of a high degree of systematic filling of the ballot boxes through the double and triple vote in JRVs lacking the proper monitoring.

3. 31% of the JRVs did not display the show card of results and in 77% of the sample observed, access to the voting center was denied to citizens during and after the scrutiny.

4. In the face of unreliable counts, the CSE did not publish the results JRV by JRV, to hide the irregularities.

5. To try to impede the proper documentation of appeals by the parties, the CSE, in addition to not publishing the data by JRV and denying legible copies of the tally in 35% of the JRVs to at least one of them, illegally cut a week off the period available to the parties to present their challenges.

Conclusion

The 5 indicators of minimum requisites related to transparent ballot counts and respect for the people’s will present serious, intentional and systematic violations by the Nicaraguan electoral authority. Based on the above, we consider that the Electoral Process does not meet the minimum universal requisites with respect to transparency in the ballot count and respect for the people’s will.

Recommendations

1. The public spirit and peaceful and democratic nature of the Nicaraguan people must be categorically applauded and strengthened, establishing the institutional, civic and peaceful path as the only way to solve this crisis of legitimacy.

2. Given the damaged legitimacy of those elected in such a corrupt process, the existing legislation and electoral system must be replaced through a transparent and participatory process, attentive to evaluations of weaknesses in both the text and application of the Electoral Law, assessed over the course of 10 years by various Electoral Observation institutions and with contributions by diverse sectors of national life. Attention must be paid to the contents of the electoral reform to avoid cosmetic changes or even a worsening of the legislation, as occurred during the previous reform (2000).

3. Given the nearness of the next municipal electoral process (less than a year away), the immediate and urgent replacement of all electoral authorities must begin, as well as the proper investigation and trial of CSE officials for the commission of electoral crimes and express violations of both the Electoral Law and their specific mandate.

4. We appeal to the international stakeholders not to fall into frustration by seeing the democratic backpedaling of our country. Measures that affect the precarious national economy and the opportunities and income of Nicaraguans must be categorically discarded as responses to the irregular electoral process. The permanent shame of those responsible and the moral sanctions accompanied by a serious summons to the Government of the Republic to actively and promptly take the necessary corrective measures are, moreover, requisites for the urgent fundamental change required by Nicaragua’s Electoral System and Democracy.

1. 198,073 citizens, based on projections of the 2005 National Population Census.
2. Source: 2005 Population Census and 2011 definitive electoral rolls.

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