Update. Nicaragua’s opposition candidate, Fabio Gadea, has rejected the results of Sunday’s election. According to the country’s electoral commission, the incumbent, Daniel Ortega got 62% of the votes cast. Gadea got 31%. He said that he had “well-founded suspicions that a fraud of an unprecedented nature and proportions” has taken place.
On November 6, Nicaraguans will go to the polls to elect the country’s next president, the 92 members of the National Assembly, and representatives to the Central American Parliament. Current president Daniel Ortega has enjoyed a consistent lead in the polls and he is favored to win another term as Nicaragua’s head of state.
Ortega has a long-standing base of support, and has won over other voters with popular programs to reduce hunger and illiteracy, and expand access to social services. But the opposition—which includes politicians and critics who come from both the left and the right—has a base as well, and both the Presidential election and the National Assembly races are hotly contested.
Unfortunately, there are serious concerns about the development of the electoral process, the potential for electoral fraud, and post-election conflict. The Supreme Electoral Council (Consejo Supremo Electoral, CSE) is not politically balanced, leaving many Nicaraguans worried that its decisions are not impartial and have favored President Ortega’s party, the Sandinista National Liberation Front (Frente Sandinista de Liberación Nacional, FSLN), and his allies. There have been irregularities in the distribution of electoral identity cards, and the electoral registry is badly out of date. The make-up of the local electoral boards, which count ballots and resolve challenges at each polling place, has not followed established procedures, with the Council sometimes naming FSLN allies to posts that ought to be occupied by opposition party representatives. And restrictions on both national and international observation of the elections mean that it may be difficult to provide an overall assessment of the election process and adequately verify the final results. Given the limitations on observation, there is concern that fraud allegations could lead to conflict, legal disputes, and violence.
Behind the immediate questions about the elections, there are deeper concerns about the state of Nicaraguan democracy. Until recently, Nicaragua’s constitution prevented an incumbent President from running for re-election. The judicial decision that stated that Ortega and over 100 Sandinista mayors’ individual rights were being violated by a constitutional provision that did not permit consecutive reelection to office is highly suspect. There are disturbing shifts in the system of checks and balances, with a growing consolidation of power in the executive branch, and the weakening of the autonomy of state institutions like the Supreme Court. Underlying these trends is the continuation of a political alliance, or pact, which preserves the façade of political party competition in the National Assembly while concentrating power in two party leaders.
I. Concerns about the development of the electoral process, the potential for electoral fraud, and post-election conflict.
The most recent poll released in early October shows populist and left of center incumbent Daniel Ortega of the FSLN maintaining a significant lead over the major opposition candidate, Fabio Gadea, who represents an alliance that includes sectors of both the left and the right under the Independent Liberal Party Alliance (Alianza Partido Liberal Independiente, Alianza PLI). Former president Arnoldo Aleman of the conservative Constitutional Liberal Party, (Partido Liberal Constitucionalista, PLC) trails a distant third. (Some late polls show Gadea surging, though he would have to make major gains to be able to win.)
Although most attention has been placed on the presidential elections, the future composition of the National Assembly is also important. Much of the gridlock seen in the National Assembly in the past few years—whether it be failure to pass reforms or to name new officials to posts—is in large part due to the failure of any party or a block of parties to secure the 56 votes needed to approve major reforms. The FSLN, the largest single bloc, currently holds 38 seats, enough to stop legislation it opposes, but not enough to pass reforms on its own. The FSLN is aiming to gain more seats in the Assembly and if this occurs, we may see a push to introduce and pass constitutional reforms that Ortega could not get approved during this government.
While it is widely believed that based on the polls Ortega will easily win the presidency, there are widespread concerns about the potential for irregularities and for fraud in these elections, including for the seats in the National Assembly. As discussed below in the section on the erosion of the separation of powers, the magistrates of the Supreme Electoral Council all belong either to Ortega’s FSLN or to Aleman’s PLC, which maintains a backroom alliance with the FSLN. There were widespread allegations of fraud in the 2008 municipal elections, and the Council was perceived as ignoring if not condoning this behavior. Some of the concerns put forward by opposition parties and non-governmental organizations who work on democracy and election issues in regard to the upcoming elections include:
- Irregularities in the provision of voter identification cards, including unexplained delays in receiving the cards (with some individuals waiting over a year); the delivery of the cards to voters by members of the FSLN rather than by Electoral Council members; and claims that FSLN members had easier access in obtaining cards.
- Outdated voter registries. In its third elections report from August-September 2011, the Institute for Development and Democracy (Instituto para el Desarrollo y la Democracia, IPADE) released a survey of the preliminary voter registry lists in 523 voting centers, showing that the names of deceased individuals were present in 71% of the lists.
- Concerns about the composition of the Departmental Election Councils (CEDs) and Regional Councils. The CEDs are made up of three members, and election law stipulates that the president and first member of the CEDs must come from the two political parties with the most votes in the last general election, which are the FSLN and the then-second place Nicaraguan Liberal Alliance (Alianza Liberal Nicaragüense, ALN). The second member should be granted to the other political parties who participated in the past general election. However, the Council has granted the second member seat in a disproportionate number of cases to the various small political parties that are campaigning in alliance with the FSLN, rather than to representatives of other opposition parties and alliances. The same pattern is repeated in the Municipal Election Councils (Consejos de Elecciones Municipales, CEMs). Because in many cases the FSLN and parties that are in alliance with the FSLN control the majority on the electoral councils, there are concerns that this lack of proportionality may lead to politically-motivated decisions being made on issues such as providing voter IDs, naming the members of the voting stations (JRVs), and the accreditation of party observers.
In this polarized political climate, where tensions are high and opposition leaders are expressing concerns about the potential for electoral fraud, impartial national and international observation of the electoral process, the vote count, and the resolution of electoral challenges plays an important role to ensure that the elections are free and fair. For several months the Electoral Council was unclear as to whether it would permit national and/or international observation for the 2011 general elections. Finally, on August 16, the Council issued its guidelines for what it called “election accompaniment.” Of particular note are articles 21 and 22 of the regulation which state: “The accompaniers of the election process can communicate their observations and judgments to the CSE in writing after they have finished their designated route,” and “the international accompaniers should present their preliminary report to the Foreign Relations Ministry which will then give it to the CSE and it will be agreed upon before being published.”
International organizations such as the Carter Center expressed numerous concerns about the restrictions being placed on election observation, and the Center decided not to seek official accreditation but merely to send a small delegation to the country during the elections. For its part, the European Union was able to negotiate an agreement with the CSE to observe the elections in agreement with the Declaration of Principles on International Electoral Observation and it has fielded 10 experts to Nicaragua and is organizing over 70 short and long term observers. The OAS, while lamenting the short time period it has to do election monitoring, also entered into an agreement with the Supreme Electoral Council (Consejo Supremo Electoral, CSE) for election accompaniment/observation. Its delegation is composed of 80 observers.
While there will be an important but limited international presence for the elections, the ability of national organizations to observe the elections remains unclear. The organization IPADE, with a history of election observation, as well as the organization Let’s Do Democracy (Hagamos Democracia), both requested accreditation from the Electoral Council and asked that they be given the same freedoms to do their work as what was granted to the EU and the OAS. The Council has not officially notified these organizations as to whether they will be accredited although both organizations plan to deploy observers, with or without official recognition. Another organization with a history of election observation in Nicaragua, Ethics and Transparency (Etica y Transparencia) announced in August that it would not seek to be accredited by the Council because the new regulations violate Nicaraguan law and that they would field observers without accreditation. To date, the National Council of Universities, which is headed by Telémaco Talavera, an advisor to Ortega on agrarian issues, is the only national body to be accredited for the elections.
While it is unlikely that Daniel Ortega’s significant lead in the polls will change, the final results of the federal elections and the events on Election Day itself will mark important moments for Nicaragua’s democracy. Like the candidacy of Ortega himself, the elections are taking place under the leadership of an Electoral Council whose ability to issue impartial rulings is questioned. There could be scattered local instances of violence, as fraud charges are hurled back and forth. If Ortega wins narrowly, the pro-Gadea forces could challenge the results and call for demonstrations, and clashes between pro-Ortega and pro-Gadea forces could well take place. Whatever happens on the street, there will likely be several legal challenges to the election results and the CSE’s resolution of these disputes will be important indicators regarding the current state of democracy in the country.
II. Deterioration in the Nicaraguan constitutional system
Nicaragua’s Constitution, approved in 1987 during the FSLN’s last term in office, has a single term executive (presumably in response to the long reign of the Somoza family), a National Assembly which names the officials of key state institutions (including the Supreme Court), and an independent judiciary.
This model, which limits Presidential power and sets up a system of checks and balances, has been slowly eroding for some time. Key to understanding this erosion is having knowledge of the real dynamics of the National Assembly, which appoints the leaders of what are supposed to be autonomous state institutions (the Supreme Court, the Electoral Council, etc.)
Understanding the current situation requires taking a step back in history to the two party power bloc, consolidated in a political agreement, often called the “Pact”, or el Pacto, which was reached between the PLC´s Arnoldo Alemán and the FSLN´s Daniel Ortega in 1999. At that time, Alemán and Ortega between them commanded a substantial majority in the National Assembly. Despite fierce political differences, the two leaders had powerful incentives to collaborate. Through their joint control of the Assembly, they agreed to legislative action providing them each with protection from criminal prosecution. And they agreed to use their power to jointly assure that the parties they commanded exercised control over the institutions whose leaders the Assembly named such as the Comptroller General, the Supreme Court, and the Supreme Electoral Council.
More than ten years later, el Pacto remains in place although after Daniel Ortega’s term in the presidency from 2006 on, the balance of power between Ortega and Aleman has shifted in Ortega’s favor. Loyal representatives of the two parties hold all of the seats in the Supreme Court and the Supreme Electoral Commission (CSE) and between the two parties they have the majority in the National Assembly, meaning they have the power to pass or block any legislation that serves their mutual power interests.
While el Pacto has been criticized since its creation, concerns about Daniel Ortega and the FSLN’s interest in expanding control over Nicaragua’s institutions began to manifest after the November 2008 municipal elections. In the aftermath of the elections, in which the CSE limited international observation to the Council of Latin American Election Experts (Consejo de Expertos Electorales de Latinoamérica), and refused to accredit national groups with a long-standing history of observing elections, there were multiple and credible allegations of fraud. The fact that the CSE did not fully examine these allegations and validated the election results, which gave the FSLN a massive victory, caused many to question the validity of any future elections held under the purview of the CSE if the magistrates from 2008 remained in place. It also resulted in several international donors to cancel their assistance to Nicaragua, including the United States’ support through the Millennium Challenge Account.
Presidential succession and the independence of the Supreme Court
In 2009, Ortega started to work to change the constitutional ban that prohibits presidents from running consecutively or serving more than two terms. Faced with tepid support for a popular referendum to change the constitution, and difficulties in securing the 56 votes needed in the National Assembly for constitutional reforms, Ortega along with over 100 FSLN mayors, petitioned the Supreme Court to annul the articles in the constitution that prohibited the re-election of the president and of mayors. In their brief, Ortega and the mayors argued that the constitutional provisions violated their individual political rights. On October 19, 2009, the Constitutional Chamber of the Supreme Court ruled in favor of Ortega and the mayors. The decision was troubling not only because of questions about whether the Supreme Court had the authority to declare unconstitutional articles of the constitution but also because of the way the decision was made. The constitutional court consists of six of the 15 members of the full Court; three of them are PLC-oriented justices and three FSLN-oriented. But on the day this decision was made, all six judges were aligned with the FSLN. One PLC justice was out of the country while the other two allege that they were not called in time to vote. As a result, three FSLN-oriented substitutes took their place.
The crisis regarding the separation of powers and judicial independence deepened in 2010. The National Assembly, divided between pro- and anti-FSLN forces, had been unable to agree on 25 government appointments, including members of the Supreme Court and the Electoral Council, to replace officials whose terms were set to expire. In January 2010, Ortega issued Decree 3-2010 that simply extended the terms of the 25 public officials until the National Assembly could reach an agreement on their replacements. Many observers consider the decree unconstitutional as the National Assembly is the body with the legal power to elect and appoint officials to other branches of the government and to state institutions. To date, the National Assembly has yet to reach an agreement to name new officials, in part because the FSLN holds 38 seats, leaving the opposition, which rarely votes in a unified manner, two votes shy of the 56 votes needed to elect the officials. The officials, even those not in the FSLN, find themselves beholden to the Ortega administration.
Months after the decree and facing increasing obstacles to his goal of reforming the constitution Ortega developed a new and creative solutions to legitimize the continuation of these officials in their posts. Government representatives pointed out that the 1987 constitution originally contained a provision allowing officials to remain in their posts until their successors were named. In fact, this provision was included in the constitution as a temporary measure, permitted because election dates were moved around as part of the 1987 constitutional revision. After the 1990 elections, this transitory provision was dropped from subsequent printings of the constitution because it was no longer relevant. But over a holiday weekend, Ortega ordered a new version of the constitution to be printed that re-instated this provision in the constitution but without the language stating that it was a transitory measure.
Prospects for the future
In his past five years in office, President Daniel Ortega has made important progress in reducing poverty, combating illiteracy, and expanding access to social services. In addition, Nicaragua continues to be safer than its Central American neighbors and it enjoys healthy economic growth. These are real and important accomplishments that should not be discounted.
But socio-economic progress should go hand in hand with, rather than be counter-posed to, the consolidation of democratic institutions. The small delegations of international election observers should be able to monitor the electoral process without restrictions, and should comment freely on both the problems and the successes they observed. In the post-election period, the international community should clearly convey its concerns about the consolidation of political power in an overly strong presidency, and should urge the government of Nicaragua to re-build the independence and the credibility of the Supreme Court and the Electoral Council.
For comments or questions, please contact Maureen Meyer, Senior Associate for Mexico and Central America, email@example.com (202) 797-2171
 To avoid a runoff, Ortega will need to secure 40% of all votes, or 35% of the votes with a 5% lead over any other candidate.
 Although these programs are important, it should be noted that many of them have been funded not through the Nicaraguan national budget but through the sale of subsidized oil provided by Venezuelan President Hugo Chavez. The proceeds from the oil sales have gone into accounts controlled by the president with little oversight. There are concerns both about the transparency and the long-term sustainability of these programs.