Chronicle of a reform foretold

The constitutional reform package designed by President Ortega is the final step of his project. With it he concentrates powers like those he had in the eighties, undoing both the 1995 reforms and the bipartite reforms of 2000, this time aiming to consolidate a single party. The Constitution that will soon govern the country is no surprise because Daniel Ortega needs it.

Envío team

Nicaragua will have a new Constitution in 2014, imposed by Daniel Ortega through the parliamentary majority he has enjoyed since the 2011 electoral fraud and an approving chorus from the representatives of the branches of government, the Armed Forces and all the other governmental institutions he has controlled for years.

A high-speed consultation

In an incredibly rapid time frame, the current Magna Charta is being drastically altered by a project the President euphemistically titled a “partial reform.” After intense rumors of Ortega’s imminent reform of the Constitution, FSLN legislative representative Edwin Castro finally announced it on October 31, at the same time downplaying the importance of the changes.

The next day the reform bill, already bearing the signature of all 63 FSLN legislative bench members, was sent to the National Assembly, thus giving the most informed sector of public opinion a chance to look at it. A week later, on November 7, the bill was sent to a special consultation commission, which finished its work within two weeks, on November 22. Ten state and governmental institutions were consulted, all of which expressed “total backing,” as did eight union, professional and other organizations loyal to the governing party. The Superior Council of Private Enterprise (COSEP), the business elite’s umbrella organization, which is now allied with the government, plus another four sectors not loyal to the government were also consulted. The Catholic and Evangelical hierarchies, legislators of the Independent Liberal Party (PLI) Alliance and the Constitutionalist Liberal Party (PLC), and COSEP all expressed a wide range of objections, criticisms, alerts, alarms and outright thumbs down. Meanwhile, economic, political and social sectors that had been excluded from the consultation joined in with expressions of national concern, enriching the arguments of the project’s opposition with documents, declarations, talks, gatherings and active participation in the few remaining independent media.

On November 22, US State Department spokeswoman Jen Psaki said in a statement that “we are following very closely the constitutional measures proposed by President Ortega and his administration. We are concerned that steps that concentrate power and undermine checks and balances will be harmful to democracy and could hurt the long-term economic development so important to the Nicaraguan people.”

On November 28, roughly a thousand people representing various social sectors gathered in front of the National Assembly gates where they vowed to defend the existing Constitution and disobey the reformed one. Ortega was evidently playing hardball, but was isolated and lacking consensus. Nonetheless, that same afternoon the Consultation Commission issued its findings on the project, announcing few modifications.

On December 3, the presidency negotiated further modifications with the business elite in a process supposedly corresponding to the legislative branch. Only the most controversial “terms” were changed. While some of the changes responded to the harshest criticisms, creating the impression that the government is not as closed to public opinion as was first felt, none of them altered the essence of the project, which is to concentrate all power in the person of Ortega and ensure that his project is prolonged over time.

On December 10, the FSLN bench, which in the 2011 general elections “won” the 60% majority needed to push through even constitutional changes, approved all the reforms, after all but one of the 28 opposition legislators walked out. They will go into effect once those same legislators vote approve them again for the required second time, most likely as soon as the National Assembly reopens next January.

Is it necessary?

One of the most oft-repeated objections in this lightning-fast process has been how unnecessary a constitutional reform is and the insistence that what the country really needs is for the government to respect the existing Constitution. From the official perspective, the reform is being made for precisely that reason, to give constitutional rank to some of the decisions by which Daniel Ortega has been in noncompliance with the Constitution ever since he took office: his reelection, his Councils of Citizens’ Power followed by the Family Committees, his decree to leave his loyal and corrupted top appointed officials in their posts after their term is up without having to face a parliamentary vote of approval… The official spokespeople quite rightly insist—as if it were a good thing—that the reform only “institutionalizes what is already being done.”

The declaration by the Episcopal Conference of Nicaragua reproduced in the following pages was delivered to the Consultation Commission by two priests. The opinion it expresses extends beyond the debate about whether or not the reform is necessary to underscore something more profound: “We hold the firm conviction that the most urgent task at this time in Nicaragua is not to make changes to Nicaragua’s Constitution but to purify and rectify the thinking and practice with respect to the exercise of politics,” stated the bishops, “as power continues to be perceived as a personal asset rather than the delegation of the people’s will.”

The 1995 “thorn”
in Ortega’s side

Did Daniel Ortega really need to reform the Constitution? To answer that question, it’s useful to read these reforms with the help of a rearview mirror. He is a President who longs for the past—in fact seems to be still living in the years of the revolution. He won the 1984 elections with virtually the same 63% he did in 2011—fairly that time—then ruled under the highly presi¬dentialist 1987 Constitution, whose widely consulted process bears no resemblance to the current one. He held so much power he could govern virtually by decree. But that power was justified by the fact that the country was at war.

The design of the current constitutional reforms recalls a basic feature of that 1987 Constitution, reflected in the power the new article 150 gives the President to “dictate executive decrees with the force of law on administrative issues,” leaving it to his discretion to decide what “administrative issues” are. In the final modifications made after the consultation process, “with the force of law” was changed to “of general application.” It changes very little, but sounds better.

The 1995 reforms to the 1987 Constitution followed the electoral defeat of both Ortega and the revolution in 1990—a specter that weaves through the lines of the current reform. Those reforms were made possible both by the split in the FSLN—in part over the reforms themselves, with most of its legislative members switching to the newly created Sandinista Renovation Movement (MRS)—and the fragmenting of the fragile United Nicaraguan Opposition coalition that had successfully run Violeta Chamorro as its candidate. The central objectives shared by the independent Right and Left at that time were to eliminate the virtually all-embracing discretionary executive powers; prohibit presidential reelection, which has a bad history in Nicaragua capable of corrupting any political project; give the legislative branch greater and more important powers as the first branch of State and begin to create more modern and democratic state institutions.

Even though Ortega’s signature as head of the FSLN opposition legislative bench appears on the original proposal in order to avoid the far-Right alternative of throwing out the entire Constitution and starting all over, he couldn’t abide the content of the reforms. Nor could Arnoldo Alemán, then mayor of Managua and presidential aspirant for the 1996 elections who, like Ortega, had a fondness for authoritarianism and discretionary power. Proving that power is addictive, even President Chamorro couldn’t abide the reforms as she and her retinue had gotten quite comfortable governing by decree. She negotiated what was called a “framework law” basically establishing that she would promulgate them only if they didn’t go into effect until after her term ended.

Now Daniel Ortega needs to “counter-reform” those 1995 changes. Doing so will remove that particular thorn in his side. His officials and spokespeople aren’t sugar-coating that aspiration, continually referring to “the 95 ones” as “uncon¬sulted, imposed” reforms, implicitly letting it be known that “it’s our turn now.”

The perks of 2000

Now let’s focus our rearview mirror on a more recent time. In fact, Ortega and Arnoldo Alemán already got their “turn” in 2000, when very important constitutional changes came out of the infamous pact between Alemán as President and Ortega in the opposition. Among other things they added four more comptrollers to a newly collegiate Comptroller General’s Office, four new justices to the Supreme Court and two new magistrates to the Supreme Electoral Council, all handpicked by the two pact-makers. Those changes were proof positive that the agreement between the two caudillos wasn’t just a political negotiation but rather a long-term pact—one more in the country’s political history—in which new top-salary posts were multiplied both to reward loyal subalterns and to stack the institutions with yes-men (and women) who would obey orders to distribute quotas of power between the two parties.

Those reforms were further designed to force a PLC-FSLN bipartite system in the country electorally as well as institutionally, and were then detailed in changes to the electoral law. The superabundance of top posts approved at that time remains intact in the current reforms, as does the job security of the yes-people chosen.

The exclusionary electoral law

The new rules of the electoral game were more rigid, more exclusionary and less democratic. They gave discretionary, almost absolute powers to the newly bipartite, politicized electoral branch. Those electoral rules we’re still saddled with have been questioned by ample sectors of the population for years. While there’s a strong demand to reform the electoral law, which has constitutional rank and thus must also be passed with 60% of the parliamentary vote in two consecutive legislative years, there isn’t the slightest hint of any such reforms in the offing.

Furthermore, in light of the official discourse stressing that these constitutional reforms are to “institutionalize direct democracy,” it’s worth remembering that the pact’s changes to the electoral law included eliminating the possibility of candidates by popular petition in municipal elections and in regional government elections in the autonomous Caribbean regions. Allowing independent candidates had expanded genuine participatory democracy by recognizing the importance of organic local leaderships. The problem for the two caudillos is that it also resulted in small blocs of Municipal and Regional Council members large enough to act as decisive swing votes.

Gone is the feared
second round

Conservative legislator José Cuadra, who was shot to death on his ranch in Matagalpa in September 1999, told envío in January of that same year, as the pact negotiations were getting underway, that only one reform really interested the FSLN and it would concede everything Alemán asked for to get it: eliminating the second electoral round for President.

At that time a candidate had to get at least 45% of the votes in multiparty elections to win in the first round, which the FSLN knew it couldn’t do. Alemán, whose PLC was much stronger than the FSLN then, refused to consider it. Ortega then pushed for the percentage to be lowered to 30%, the size of his party’s firm vote, but Alemán still didn’t budge. He finally agreed to 35% but only when the first runner-up pulled at least 5% less. We don’t know what Ortega conceded in exchange.

With today’s constitutional reforms, Ortega will finally get rid of that feared second round altogether. The new Constitution establishes that the presidency will be won by the candidate who obtains a relative majority, regardless of the percentage of votes. With this change he has not only pulled out another “thorn” of the 1995 reforms, but also alleviated his doubts about how much of the population really backs him, not in popularity polls but at the ballot box.

If the reforms of 2000 forced a bipartite model, the current ones are clearly aimed at consolidating a single party, and the rigid, exclusionary electoral rules of 2000 remain intact to guarantee it. So, as we can see, Ortega even needed these reforms from the perspective of this most recent past, when he was Alemán’s partner.

The President and the Army

Ortega’s need for these reforms, however, isn’t only explained by the past. He also needs the concentration of power in his person and continuance of his authoritarian project for the future.
One of the future needs that set off the most insistent alarms for all those who succeeded in registering their views with the consultation commission and/or the media was seeing the Army brought into Ortega’s political project. The reforms establish that active-duty military and police officers may occupy civilian posts in the State in “the supreme interest of the nation.” They also turn telecommunications over the Army to manage, considering them within the sphere of “defense and national security.”

The alarm sounded loud and clear when the Army of Nicaragua—an institution that has very convincingly lived up to its constitutional definition as “apolitical, non-party and non-deliberative” over most of the past 23 years—showed up at the Consultation Commission to give these reforms its “full and total backing.” The National Police followed suit, expressing its “absolute backing.”

The reform to the existing Military Code, which President Ortega sent to the National Assembly on November 12, less than two weeks after the constitutional reforms, caused even more alarm. The reformed code eliminated the defined term for the Army chief, who can now also be reelected. It increases to 40 years the period all officers may serve in the Army before retiring and allows them to be called back. And it assigns the Army new tasks: “to intervene in uprisings and riots that exceed the Police’s capacity to extinguish them,” to control telecommunications and to “protect” both public businesses—a task previously assigned to the Police—and “mixed capital” companies, among which are the numerous businesses of the powerful ALBA consortium. The Army has already been providing protection to private (or are they mixed?) transnational corporations such as Noble Energy, which is currently exploring for oil in the Caribbean, and CHN, which will build the Tumarín hydroelectric megaproject.

The National Police organizational law will also be changed, surely along similar lines to the Military Code reform.

Why the militarization?

All the opposition voices agreed that the content of the constitutional reforms and the fact that the Army top command applauded them is a step backward in the professionalization of an institution that was born as a guerrilla movement then graduated to become an army loyal to the governing revolutionary party (called the Sandinista Popular Army (EPS) throughout the eighties) and has since worked hard to become a respected national institution (now called the Army of Nicaragua). Retired General Hugo Torres sees this as an intimidating message to the population.

Other voices have noted that the government’s decision to abduct the Army is an expression of Ortega’s weakness, as he feels the need to appear “armed” before the population to thus bully, domesticate and demoralize it. Some wonder whether retired General Humberto Ortega—Daniel’s brother and head of the EPS throughout the war of the eighties who then both pushed for its professionalization as the Army of Nicaragua, then kicked it off with his own resignation in 1994—will have something to say about this dangerous curve in the road.

In the “Speaking Out” section of this issue, PLI legislator Eliseo Núñez offers his understanding of why Ortega needs these reforms in preparing for the future. For him and many others, the tendency toward the “militarization of the State” is the most serious aspect of the reforms. Some analysts mention that the officers will guarantee stability to the current political project in the context of the reduction of Venezuelan aid and the focal points of social unrest appearing in various parts of the country, to which the strict governmental control is failing to respond.

More reasons

Roberto Orozco, a specialist on security issues, believes the changes to the Constitution and the Military Code show that the Army’s professionali¬zation process never managed to cut “umbilical cord” attaching it to the FSLN. He also points out that the last of the EPS founders would already be retired by 2022-2025 without the change to 40 years. Ortega has decided to rescue that cord and tie it to him. “He’s looking to preserve the founders, that nomenclature,” says Orozco, adding that, in addition to Ortega feeling close to them and viewing them as loyal, those officers have now become a business elite.

The militarization introduced by the reforms can also be explained by Ortega’s distrust of the new generations in the Armed Forces. The old generations’ distrust of the new ones is even more acute in the National Police than the Army, even though in both cases it grows out of the fact that the younger officers don’t have the same training or experience of the revolution and weren’t forged the same way the founders were. One probable reason for the relative difference between the two institutions is that with the end of the war, the Army was cut back from 90,000 to 15,000 by 1991, whereas the National Police remained intact. In deciding which officers would remain in the peacetime Army and which would not, Humberto Ortega forced the most militant and unapologetic party loyalists into retirement precisely to reshape a more domesticated army, loyal to the Constitution and open to non-partisan professionalization.

One of the modifications made by the legislative commission based on the brief consultation process was that army and police officers called upon by the President to occupy civilian posts will do so for a defined time and only in the executive branch, not the judicial or electoral ones. The idea that they could become electoral magistrates or judges was what had triggered the greatest concern. The decision to incorporate military and police officers into civilian posts is also implicit recognition of the scarcity of professional cadres in the FSLN. More explicitly, it’s acknowledgement that those two armed institutions offer a rich and tappable vein of people well-trained in different professions and with a strong work discipline.

The worrisome cyber-control

Militarizing telecommunications and obliging businesses to operate their computer databases and records out of Nicaragua was another issue that caused major concern, due to both the political control it heralded and the economic implications for both businesses and ordinary people for whom those services will be more expensive, more limited or even suspended. The presidency withdrew this reformed point of article 92 at the last minute and replaced the word “control” with “regulate.”

The cyber-control was the first concern expressed with something approaching shock by the government’s main ally, COSEP President José Adán Aguerri. Speaking for the business elite, he warned that the constitutional stipulations on telecommunications would be “an adverse, very severe blow, and one of enormous risk” in the current globalized economic scheme in which Nicaragua is now moving.

The many concerns expressed in this regard were met by official explanations that did little to clarify a reform drafted in extremely ambiguous language. While there were no official comments from Claro and Movistar, the two large international corporations currently running telecommunications in Nicaragua, the experts who offered their views pointed out that the consequences of militarizing communications, considered a “national security” sphere, will depend on the laws promulgated to implement the reform and on the interpretation when they are applied.

“The way the reform is stipulated at the moment could give rise to any other type of regulation. They are creating a legal basis for other laws we have no way of predicting,” said telematics engineer Norman García, a member of the Free Software Users Group. His concern based on the uncertainty generated by this particular reform is widely shared.

To defend our privacy

In his “Speaking Out” article, which preceded the latest modifications, Eliseo Núñez mentions some of the possible cost consequences of the cyber-control of national telecommunications, especially through mobile phones, owned by three out of every four Nicaraguans in 2011 according to a report of the International Telecommunication Union. In the case of internet, while barely 4% of Nicaragua’s population has direct access according to data from Telcor, the telecommunications regulatory body, many small cybercafé businesses provide this service all over the country. They were the first to be attacked by Telcor Director Orlando Castillo as places that should be “controlled” because “any kind of libel, slander and disinformation” can be committed there.

The official argument has been that the constitutional cyber-control is aimed at protecting the privacy of the communication of Nicaraguan citizens. But experts say that the risk of hacking, spying or other forms of interference isn’t reduced and could even be greater if the equipment is in Nicaragua.

Why not hold a
recall referendum?

Also questioned was the inclusion of the “direct democracy” concept now enshrined in the Constitution, albeit with a last-minute semantic change. Instruments such as the referendum and plebiscite, which have never been held in Nicaragua, were conserved in the text.

The new instruments that initially appeared in the reform were the Sectoral and Territorial Councils, believed to be expressions of the corporate model corresponding to the alliance between the government and big business, and the Family Cabinets, which are para-state organizations of the governing party that follow the guidelines and execute the tasks assigned by the presidential office.

In the consultation and out of it, some remrked that if the intention was to enrich civic participation through direct democracy, the reform should have included the concept of the recall referendum that Hugo Chávez incorporated into the Venezuelan Constitution. Ortega himself promised to do so four years ago, in his July 19 speech in 2009, when he was seeking the reelection the existing Constitution denied him.

That afternoon he said: “On this historic day I want to make a call to all Nicaraguans, to all the political forces, to work to have a better Constitution. If a Constitution establishes the recall referendum, what would that mean? That the people can remove the President whenever they so decide… The people needed to be given that right, and we will continue fighting for the people to have that right.” The struggle never went beyond that rally; it was just another example of rhetorical adherence to the Chávez approach.

“Direct democracy”

“Direct democracy” has now achieved constitutional rank (article 7). With no clarity about what it will consist of, how it will function or what the “other direct mechanisms” mentioned in the modified version will do to allow people to exercise democracy, everyone in Nicaragua knows who make up the Family Cabinets, until recently called Councils of Citizens’ Power, and what they do. They are one of the structures organized from the presidential offices that have totally annulled the existing Law of Citizens’ Participation and the organizations it promoted. In their two incarnations these organizations have been replacing the old FSLN structures in the rapid mutation that political party has been experiencing in recent years.

The “sacredness” of family

The first dissident voice on the question of direct democracy was heard in the Consultation Committee on November 14 and it came from the Assemblies of God, the fastest growing denomination of the diverse evangelical groups in Nicaragua. Reverend Saturnino Cerrato, who said he was speaking on behalf of 400,000 members, claimed they want the Family Cabinets removed from the Constitution “because the family is a sacred institution and space, whose formation, education, direction and actions are the exclusive competence of the heads of household, without any room for natural or legal persons outside of the family nucleus to have any form or manifestation of interference.”

The formal modifications by the special commission didn’t touch the essence of the problem. They only added that participation in the Cabinets must be voluntary and the Cabinets must be inclusive. Finally, to alleviate the concern of the religious groups and achieve some legitimacy with them, word came that the presidency had decided not to mention the Cabinets by name in the Constitution, which of course does not imply they will act any differently than they have so far.

Big business voiced
displeasure with the reforms

Despite its solid alliance with the government, national big business put some serious distance between itself and the constitutional reforms. The business owners and executives in the American Chamber of Commerce (AMCHAM Nicaragua), who were not invited to the consultation, did a survey among their members in which 80% rejected the reforms. “The changes being proposed to the current Constitution would mean a total transformation of the fundamental principles of the State that Nicaraguans have known… A reform of the magnitude of this proposal could cause serious and unnecessary uncertainty and help create a perception of a possible increase in political-economic risks in the near future… Changes of the dimension being considered for the Magna Charta are not in the country’s interests,” they said after this consultation process.

The Nicaraguan Foundation for Economic and Social Development, an important think tank of the business elite that was also not consulted, issued a declaration explaining the possible dangers of applying the 13 most controversial of the 39 reformed articles and concluded that the reforms “could negatively affect not only our democracy, but also economic growth and poverty reduction.” They assessed the whole reform package as “negative.”

COSEP, the government’s most visible and pragmatic ally in the big business constellation, had many objections. It expressed concern about the weakening of the political parties (article 5), the military aspects of the reforms, the cyber-control and even that COSEP was mentioned as co-governing in “shared responsibility.” Moving beyond the specific text of the reforms it called for a new electoral law and an identity/voter card institute independent of the electoral branch of government that would finally guarantee the unpoliticized issuing of ID cards.

In the end, the government sat down with COSEP to hammer out “adjustments” to the initial text. But they only amount to the tweaking or eliminating of some terms; there were no substantial changes. There will be no mention now of “venerating” the Earth as “Great Mother” or of the Family Cabinets, for example. Those and other similar alterations calmed people down, papering over the isolated position in which the government found itself, because they give an image of flexibility. But none of what was changed at the 11th hour in the presidential offices touches the core of the reforms: the concentration of power in a single person and the guaranteed perpetuation of that person’s political project.

A disturbing future

With that the December festivities kicked off with lots of new lights in the streets and a lot of darkness in the political environment. Will the constitutional reforms Daniel Ortega has designed to assure the permanence of his political project over time move Nicaragua into a still more uncertain political, social and economic stage or could these very reforms, so questioned, objected to and even rejected by all the national sectors left outside Ortega’s iron circle, be what leads to the breakdown of that project? That is the disquieting question hanging over the country as 2013 draws to a close.

Print text

Send text