Steeled against “risks” and “threats” Steeled against “risks” and “threats”

We’re about to enter a predictably difficult year. Being an election year, the Ortega-Murillo power group is armoring itself against “risks, threats and conflicts” to guarantee reelection and five more years of its political and economic model.

Envío team

All polls indicate majority support for already three-term president Ortega against a splintered and programless opposition that has allowed itself to be calculatedly weakened by Ortega himself. If he’s such a shoe-in, why does he feel the need to circle his wagons to guarantee reelection?

And why, if the social and environmental impact assessment of Nica¬ragua’s controversial interoceanic canal project—whose 14 volumes have finally been made available to the public—notes “considerable risks” even while revealing serious gaps that need more study, did the government so quickly approve it and join HKND, the Chinese concessionaire, in insisting that this mega-project will have “a net positive impact”?

These are just two of the questions still hanging in the air as we leave 2015 behind and prepare for 2016, a year plagued with uncertainties.

Will the elections be
reality or theater?

In the upcoming presidential and legislative elections, will voters once again find themselves free to either elect new authorities or legitimize the governing ones? Or will they simply participate in a mock election in which the Supreme Electoral Council (CSE) ulti¬ma¬tely assigns the two main executive actors and 90 legislative bit players, as was widely alleged to have happened in 2011 but was never investigated?

Once Ortega gained such total control over the electoral branch of government that a string of electoral frauds became possible starting in 2008, this question, elementary in any election anywhere, can no longer be answered here in Nicaragua. And that raises another question for both the political opposition parties and the voters: is our duty to participate or to abstain given the existing conditions, which offer no sign of changing? Why bother to run candidates or vote?

By law, presidential and legislative elections are held every five years on the first Sunday of November. In 2016 they fall on November 6. Traditionally the Supreme Electoral Council (CSE) extends a public invitation to candidates exactly a year beforehand, in this case November 6, 2015. But this time it didn’t do so and offered no explanation.

The executive branch increased next year’s CSE budget line for trips abroad and per diems by 400% over the previous election year (2011) with no indication of the destination or objective of these trips. It also assigned the CSE money for nearly a million credentials for party monitors at the voting tables, more than 10 times the number needed for the 2011 elections. Will there be 10 times more parties running candidates this year or 10 times more voting tables? Again, the CSE offered no explanation.

Nicaragua’s elections are still very costly, despite the modernization processes for which the CSE has received millions. With roughly 3.5 million registered Nicaraguan voters, the cost per vote is US$9.85, over twice as much as Costa Rica’s $4.14.

Could observation
change the outcome?

Among all the pre-electoral uncertainties, electoral observation—not only by international experts, but even more importantly by national ones—has been held up as the main element that could ensure that next year’s elections are real and not just the theater of the CSE deciding who gets posts and who doesn’t.

Some say that enough independent national and international electoral observers would encourage the vacillating parties and undecided voters to participate because it would overcome the current uncertainty and apathy. More hopeful voices even insist that under these conditions Daniel Ortega would be defeated in a repeat of the 1990 experience, when they believe independent international observers motivated a massive voter turnout and prevented the FSLN from attempting any fraudulent activity, thus allowing the opposition to win fairly.

The ghost of 1990
is big for both sides

Four determinant elements are lacking in this excessively optimistic projection. The first is the war that had been wearing down the country for nine years and the conviction it would end if there were a change of government. Said less diplomatically, the US government would stop financing the war and impeding the negotiated settlement that not only Nicaragua’s government but many others in Latin Amer¬ica and Europe had been working for years to achieve.

The second is that nobody in the governing Sandinista National Liberation Front (FSLN) even imagined the possibility of defeat and thus no steps were taken to avoid it. In fact its leaders’ speeches made victory sound so inevitable that people didn’t even think about the possible consequences of casting a “punishment vote” against the war and uncontrolled economic disaster.

The third element is the confidence that Violeta Chamorro’s candidacy inspired with her discourse as the “peace candidate” and her endorsement from the administration of George Bush Sr. (not to mention a late-coming under-the-table infusion of some $11 million in campaign funds from the same source).

And the fourth is that the opposition has lacked any project for change for some years now. Apart from vacuous promises, it has run against Ortega rather than for anything programmatic of its own. Whatever one may have thought of it, Chamorro and her son-in-law Antonio Lacayo, who was her campaign chief and then presidential minister, had a strategic project. (See Nicaragua Briefs in this issue on Lacayo’s recent death in a helicopter crash.)

The ghost of 1990 that haunts Ortega and his closest circle is obviously very different from the one that eggs on the opposition. An even more recent specter for Ortega is that of 2006, when he won the elections with only 38% of the vote running against a divided rightwing opposition and a leftwing split from his own party. Some say the mysterious 8% of the votes that allegedly went unreported that year would have cost him the victory.

Since then he has tried to make sure he won’t again be caught by any more defeats or near misses. He has played a major role in assuring that the rightwing opposition is more divided than ever and also ordered the CSE to strip the only surviving leftwing party, the Sandinista Renovation Movement (MRS) of its legal status prior to the 2008 municipal elections. It can now only run candidates and negotiate its program in an electoral alliance with parties that still have their credentials and thus can get on the ballot. And of course Ortega’s people have presumably been fine-tuning and enlarging their menu of fraudulent maneuvers just to be sure. But at this point it’s all overkill, because no opposition candidate is even close to being the vote magnet Violeta Chamorro was in 1990.

Will there be
electoral observers?

Will Ortega permit electoral observation in the next elections? Could either international pressure or perhaps his own need to increase his legitimacy force him to do so?

The 2011 elections were the third straight time he refused to allow the participation of the country’s two national electoral observer organizations, IPADE and Ethics and Transparency (the latter the Nicaraguan chapter of Transparency International). And for the first time that year he also didn’t invite the Carter Center, which had observed all other elections since 1990. He did allow observers from the European Union (EU) and the Organization of American States (OAS), but many of them weren’t allowed into the voting centers until nearly 10 am, three hours after they opened and four hours after the ballot boxes had been set up.

The EU mission brought 90 observers three weeks before the elections but on election day itself they were only able to visit 559 of the country’s 13,000 voting tables. Three months later the mission presented a long and detailed list of recommendations to the CSE to fix what it defined as a process “lacking in neutrality and transparency.” The CSE has not implemented even one of them.

For his part, Dante Caputo, head of the OAS observation mission, called a press conference at 2 pm on election day itself in which he declared that the governing party had obstructed his mission’s work, preventing it from making an objective appraisal. “Our radar didn’t fail,” pronounced Caputo, “they blocked it.”

Everyone knows it’s much harder to “block” the radar of independent national observers. There are thousands of them so they have the capacity to cover the whole territory; they know first-hand all the details of the process leading up to the elections; they know the country and its actors; and they’re very good at what they do. It’s precisely for those reasons that so much weight is given to having national observation in the next elections.

Like in Venezuela?

What will happen with election observation this coming year? Nicolás Maduro’s government in Venezuela was asked to allow international observers in that country’s December 6 legislative elections to lend the results credibility and legitimacy. When that possibility was rejected, the new OAS secretary general, Luis Almagro, sent an 18-page letter to the president of the country’s National Electoral Council insisting on the need for that guarantee to assure electoral justice.

Given the differences between the political contexts of Venezuela and Nicaragua and the hugely different geopolitical and geoeconomic weight of the two countries, some expect Nicaragua’s CSE to receive a similar message from the OAS if it rejects international observation.

Both pressures and consensus

The US government has already been insisting on electoral observation in Nicaragua. Francisco Palmieri, deputy assistant secretary for the Caribbean and Central America in the State Department’s Bureau of Western Hemisphere Affairs, visited on November 9-11, expressing “concern” about democracy in Nicaragua in several of his meetings. He discarded the idea of “accom¬paniers,” a concept the Ortega government has tried to present as a substitute for observers. “We are very traditional,” said Palmieri, using diplomatic humor to communicate Washing¬ton’s preference for real observers.

He defended the importance of both international and national observers to guarantee democracy. Ortega met with him and Laura Farnsworth Dogu, the new US ambassador, who since her arrival in September had made several similar declarations in favor of democracy and transparent elections.

If such opinions are already being voiced from on high, the majority of the citizenry is also making known from below that it wants electoral observation. In the latest public opinion poll by M&R, done in October, 90.2% said they were in favor of international observation and 89.6% were also in favor of national observation. Interestingly, the percentages are both higher and reversed among those who admit to being FSLN sympathizers: 94.1% favor international observation and 94.4% national observation.

The combination
Ortega fears most

Does this mean President Ortega will be obliged to accept electoral observation, which would in turn force the CSE to be more transparent in the preparation and holding of the elections? And would such observation really encourage a massive vote against the incumbent?

It’s too early to even venture a guess. What we can see, however, is that to prevent the possibility of things getting away from him, Ortega is already organizing an operation well before the elections to dissuade, intimidate and repress active opponents and ensure passivity and indifference among the general population to turn any potential votes against him into abstention.

Despite its high rating in the polls, the governing party seems to fear a combination of independent observation and massive voter turnout, in other words a visit from the ghost of 1990… That may be why the CSE has cut by 52% compared to 2011 its propaganda and publicity budget for 2016 to explain the voting process to the population and encourage voting as a civic right.

Legal armor

The year is coming to a close in this context of fears by a government that imposes rather than dialoguing. To overcome them and ratify its authoritarianism, it has been armoring itself legally and judicially to deal with its “internal enemies.”

On October 9 the executive branch sent the National Assembly a bill for a Sovereign Security Law to replace the Democratic Security Law in effect since late 2010. From the day the public learned about its content, there has been no end to the alarmed analyses of its consequences by human rights organizations and experts on security issues. This issue’s analysis section carries the urgent assessment published by the Institute of Strategic Studies and Public Policies right after the bill became public.

The FSLN’s legislative bench, which has enough votes to decide anything the executive branch orders without even minimum debate or improvements, held a two-day consultation on the bill. Violating National Assembly procedures, it limited those called to give their opinions to the state institutions that will enforce the law: the Army, Police, Attorney General’s Office, Public Ministry and Supreme Court, all totally under the President’s control. The only exception, now habitual, was the business leaders in the Superior Council of Private Enterprise (COSEP).

To no one’s surprise, none of the State’s representatives made any suggestions to enrich or modify its contents and all expressed their “full backing.” COSEP’s legal adviser, on the other hand, expressed very important concerns about the balance that must be respected between defense and security policies and the citizenry’s rights and guarantees.

A law with “pockets
of discretion”

COSEP also expressed concern about what Liberal jurist José Pallais called the bill’s “pockets of discretion.” Pallais, who headed the National Assembly’s Justice Commission back when the Democratic Security Law was drafted and debated, was referring to the parts of its replacement that establish what will be understood by “risks,” “threats” and “conflicts.”

Article 7 specifies risks not only as “catastrophes or natural disasters, the effects of climate change, the exhaustion of water sources, the proliferation of major diseases,” but also “any other factor that generates a danger to the security of persons, life, family and community, as well as the supreme interests of the Nicaraguan nation.”

The long list of threats in Article 8 includes illicit drug activities, the entry of maras (the term for the Honduran and Salvadoran gangs that have a particularly violent reputation), acts of foreign interference in national affairs, cyber attacks, sabotage, rebellion, treason against the homeland… and again “any other act, activity or factor that violates the comprehensive development of persons, family and community.”

Equally generic is the bill’s definition of conflict, whether of a social or political nature. While three of COSEP’s recommendations to clarify language in the law were accepted, they did not include its request to clear up the ambiguity of these unspecified “others” to avoid “the most minimal margin of discretion,” which is particularly important now that all government institutions are characterized by an increasingly discretionary application of laws and their regulations. The head of the FSLN’s parliamentary bench, Edwin Castro, brushed off COSEP’s observations as “so obvious it was stupid to mention them” given that the Constitution prohibits trampling on people’s human rights. It was yet another case of the government listening to its corporate allies when the content is economic but paying no attention when it is political.

The new National
Sovereign Security System

The structure that will determine these “other factors” that constitute risks, threats or conflicts in this sea of ambiguity is a new entity called the National Sovereign Security System, which will be coordinated by the President and directed by the Department of Defense Information (DID), the Army’s intelligence section.

The state institutions included in this structure are the National Disaster Prevention and Mitigation System, the Attorney General’s Office, the state ministries responsible for food and nutrition security and sovereignty, the General Migration and Aliens Division, the National Penitentiary System, the National Customs Services Division, the Financial Analysis Unit, the Superintendence of Banks and Other Financial Institutions, and the Public Ministry. The latter, also known as the Public Prosecutor General’s Office, was created some years ago by dividing the previous responsibilities of the Attorney General’s Office, leaving it to defend the State while the new institution would defend its citizens. Pallais noted that the Public Ministry’s inclusion in a system directed by the Army is particularly serious as it “means a total break with the rule of law; it loses its independence and autonomy by being subordinated to military power, converting it into an instrument of political repression.”

Still more legal
and judicial armor

The legal armor Ortega has built up to get through the election year was reinforced with even more “steel”: a bill to reform the Criminal Procedure Code promoted by the Supreme Court. This bill proposes to change to between 45 and 60 days the current 48-hour deadline by which anyone detained by the police must be brought before a competent judge for a preliminary hearing. This violates the rights and guarantees established in Nicaragua’s Constitution and in an international convention our country has signed.

Jurists and human rights defenders argue that this reform, designed to complement the Sovereign Security bill, which was passed into law on December 2, simply gives a semblance of legality to what the government is already doing. Since July of last year we’ve seen police detentions without a judicial order followed by the detainees being confined in Mana¬gua’s auxiliary judicial jail (El Chipote) for long periods without even informing relatives of their whereabouts, allegedly using torture in the interrogations, maintaining prisoners incommunicado without allowing their families to see them, failing to provide them legal assistance and dragging out the deadline for their appearance before a judge. The government has applied this illegal procedure, which also violates several international human rights, to peasants fighting the interoceanic canal; miners who protested abuses by the Canadian mining company B2Gold in Santo Domingo and more recently in the community of Mina El Limón; those it decided to hold responsible for the July 19, 2014, massacre and this year’s murder of five police officers in Punta Gorda; and even former sugarcane workers with chronic renal insufficiency who are demanding compensation from the Flor de Caña rum company…

Non-institutional spokespeople for the regime have tried to justify the new legal armor in general and this judicial reform in particular by blaming global terrorism, the complexity of the security challenges facing today’s world, the complex investigation process for drug-traffickers and members of organized crime, and the better-quality work the police could do if not bound by the brief constitutional deadline of 48 hours…

Alarming opinions

Those attending a parallel unofficial consultation organized by Independent Liberal Party (PLI) legislators to hear minority findings by independent experts on these new pieces of legislation received some alarming opinions. Roberto Cajino, an expert on military and security issues who was Humberto Ortega’s adviser in the eighties when the now retired general headed the Sandinista Popular Army, said the new Sovereign Security Law, already being dubbed the SS Law, “leaves Nicaraguan society totally defenseless.”

Days later, Cajina wrote in the Nicaraguan magazine Confidencial: “What it aims at is erecting a ‘new type’ of police State in Nicaragua, but obscenely reproducing the old models of Somoza with the National Security Office (OSN) and of Ortega himself in the eighties with the General State Security Division (DGSE), which were the political police of both regimes, one a rightwing dictatorship and the other a leftwing, or supposedly leftwing, one.”

Roberto Orozco, another security expert, said in the unofficial consultation that “the regime is preparing itself to confront with all its power a possible generalized crisis.” In a piece in La Prensa, poet and writer Gioconda Belli asked: “Why now? Why at the doors of an electoral process? With polls that give them such a high approval rating, what do they know that we don’t about the true status of opinion within the country?” And Gonzalo Carrión, juridical director of the Nicaraguan Human Rights Center (CENIDH), stated that the Penal Code reform bill seeks to “give more power to power and seal the police State. They prescribe prison for those they consider hostile to the regime; they want to take those who protest out of circulation and release them from prison broken so they won’t return to the streets.”

Protest Wednesday

For the past 34 weeks with scarcely a break, the opposition has been holding what it calls “Protest Wednesday” demonstrations in the streets of Managua and other departmental capitals and municipalities. Between dozens and hundreds of people, sometimes more, including legislators and political and social activists, show up each week to demand “free and transparent elections,” convinced that without them there will be no conditions for participating, voting or obtaining believable electoral results.

They began with just a few people from the opposition parties, then participation grew then shrank again. The presence of riot cops with helmets, shields and protective uniforms surrounding the protest in the capital every week has been out of all proportion. And it has boomeranged, because the various media covering the weekly protest—which are only non-official ones, of course—have made increasingly visible to the population the meaning of the protestors’ demand for an elemental constitutional right.

Intervention in the protests

Daniel Ortega appears to fear these expressions of protest. He not only wants to prevent them from becoming massive, but is also concerned about their constancy.

The opposition had designed a larger demonstration for Wednesday, July 8, bringing hundreds of people from outside Managua. Ortega responded by ordering a violent intervention. Police officers blocked the highways preventing passage of the vehicles carrying protesters, and in the streets of the capital violently attacked several participants, among them journalists whose equipment was also damaged or stolen and eight PLI legislators who were detained for some hours. The US Embassy expressed “concern” about these acts in a communique.

The next “intervention” occurred on the first Wednesday of September, when a former youth gang member shot into the demonstrators right in front of the police officers, who did nothing to stop him or detain him afterward, claiming they hadn’t seen anything. The most recent one was on November 11, when some 70 hooded gang members moved into the streets where the protest was taking place. Infiltrated by the governing party, they were outfitted in t-shirts of “opposition” youth movements and threw rocks, beat and cracked the skull of two legislators and one bus passenger who was just passing by, and stole cameras, cell phones and taping equipment. The police again failed to act, leaving the vandals to act with total impunity.

Intimidate, dissuade, confuse...
a first sampling of the SS Law

The objectives of these “interventions” and infiltrations organized by the government are to discredit the opposition expressing itself in the streets (they’re violent, fight among themselves), discourage participation out of fear of aggression, and wear down and confuse the population that’s indecisively observing the pre-electoral scenario (who’s who in that mess?)…

After the November 11 vandalism, the government apparently decided to take a further, now common, step to intimidate those demanding that the 2016 elections be transparent and observed: “judicialize” the political conflict, knowing that attorneys and judges obey its decisions and fabricate cases. The government ordered the police to capture a Municipal Council member and a PLI activist who the previous Wednesday had defended themselves with their belts against attacks by a youth movement leader who contracted the vandals. The two were locked up in El Chipote and accused of “frustrated homicide.”

At the same time, the Public Ministry asked the Assembly to strip the parliamentary immunity of two Liberal legislators who also participated in the protest and were accused of the same crime so it could take them to trial. To make this whole process appear objective, the government also ordered that two youths who had helped organize the vandalism be included among those captured, but they were only accused of “aggravated theft.”

This judicial “package” applied in this pre-electoral context shows what the discretionary application of the SS Law could look like in an actual electoral year should there be any conflicts, risks or threats.

Interoceanic canal:
Still more armor

In this last stretch of the old year, the government resolved to approve the Environmental and Social Impact Assessment (ESIA) prepared by Environmental Resource Management, the British firm hired by HKND, the Chinese company given the concession to construct an interoceanic canal. It did so without consultation and without presenting its resolution to the public, although HKND did finally make the 14,000 pages of that study available to the public on its web page.

The speed and superficiality with which the ESIA was done and the amount of risks and threats it pointed out—as we report in the Speaking Out section in this issue—augur problems in convincing any serious financier to invest in the canal. Be that as it may, the government pushed its approval through the National Assembly at the end of November and HKND announced it as a “green light” to begin construction at the end of next year, even though the “initiation of the works” was already celebrated on December 24 of last year then followed by nothing more than the grading and widening of a 7-kilometer dirt road…

The government’s official endorsement, which falsifies and hides what the ESIA really says, is another piece of armor to protect the Ortega-Murillo reelection project. Its function will be to encourage the population to believe in the prompt implementation of a “historic dream,” transferring to Ortega the sovereign power to “pull the country out of poverty by heading up the greatest engineering work in the history of humanity.” Symbolic armor like this one feeds the imagination of at least part of the population, which fantasizes that the construction of something so mammoth in a country so small can only bring enormous benefits and magically transform our enormous shortages into permanent abundance.

An unacceptable level
of uncertainties

Almost at the end of the 14 volumes of text, the ESIA refers to “a few, but important, subject areas that still have an unacceptably high level of uncertainty and require more study for ERM to conclude that the canal alignment has been properly optimized and to confirm our impact conclusions that are dependent on them.” This qualified conclusion coincides with the overwhelmingly high level of uncertainty associated with the start of 2016, which we will traverse between risks and threats, whether real or fabricated by the government. We’ll aspire to climate justice, which is contradicted by the canal and canal law, and to electoral justice to assure us fair, observed and transparent elections. Will that be contradicted too?

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