Can Nicaragua Break Out of Its Cycle of Upheaval?
April 2021 marks the third anniversary of the outbreak of the democratic crisis in Nicaragua. Three years later, and the material and intellectual authors of the killing of 328 people and the injuring of more than 2,000 others during the 2018 protests continue to enjoy impunity. Rather than punishing those responsible for serious human rights violations, the Nicaraguan government has refused to comply with its international obligations, instead moving to approve a new “amnesty law” aimed at obstructing any and all procedural attempts at seeking truth and justice.
To date, there are still no assurances for the safe return of the more than 100,000 people who remain in exile, mostly in Costa Rica. Additionally, as the Mechanism for the Recognition of Political Prisoners has emphasized, 125 people are still in prison for political reasons, 115 of whom are detained for activities related to the 2018 protests. According to the Inter-American Commission for Human Rights (CIDH), these people are being held in overcrowded facilities, receive negligent medical care, and are subjected to arbitrary solitary confinement, among other cruel, inhumane, and degrading treatments. For those who remain in Nicaragua and continue to demand regime change, harassment from state security forces and “parapolice” groups is constant.
On this three-year anniversary, Nicaragua faces another delicate juncture: general elections for the country’s executive and legislative powers are scheduled for November 7.
Since September 2020, the Group for Electoral Reform (Grupo pro Reformas Electorales, or GPRE) introduced a series of basic demands they claim are the minimum necessary to ensure an independent, inclusive, and transparent electoral process. In addition, on October 21, the General Assembly of the Organization of American States (OAS) approved a resolution designating May as the final deadline for the Nicaraguan state to institute electoral reforms that guarantee respect for the political rights of citizens. The document calls for a restructuring of the Supreme Electoral Council (Consejo Supremo Electoral, or CSE); the creation of a transparent and effective voter registry; independent and accredited international election observation; transparent vote recounting and the real-time publishing of results; and the establishment of effective procedures for the presentation and resolution of complaints regarding the electoral process. This call has been echoed by the European Parliament and, more recently, by the Human Rights Council of the United Nations.
The deadline set by the OAS expires next month, and far from making reforms in the direction requested, the Legislative Assembly’s ruling Sandinista majority has instead passed the “Law for the Defense of the Rights of the People to Independence, Sovereignty, and Self-determination for Peace”—legislation aimed at excluding political adversaries from participating in the upcoming elections.
Faced with this situation, opposition groups will have to decide, first of all, if they will compete in the elections under such conditions; and second, how to navigate a way out of the crisis and ensure the same situation will not just repeat itself. Adding our voice to the emerging debate, we would like to pose three questions, offered in good faith, whose answers, we believe, should inform any program for reform in Nicaragua:
What is the roadmap for the restoration of the Supreme Electoral Council?
Demands for electoral reform made by the opposition and by the OAS call for a restructuring of the Supreme Electoral Council (CSE) through the election of new magistrates. A 2005 ruling by the Inter-American Court of Human Rights in the case of Yátama Vs. Nicaragua warned of the arbitrary nature of the Nicaraguan political system, and of the need to adopt substantive electoral reforms that would establish, among other things, a process for appealing decisions made by the CSE. Given the possibility that reforms to the council will not take place before the elections, it is critical that proposals for change include a plan to make the modifications necessary to restore the independence of the CSE, beyond just replacing magistrates.
How to reestablish confidence and ensure independence in the justice system?
The justice system, composed of the National Police, the Attorney General’s Office (Ministerio Público), and the judiciary, has played a decisive role in the repression and criminalization of social protest in Nicaragua. Since the crisis began, the National Police have engaged in the direct repression of mobilizations, committing what the International Group of Independent Experts at the Inter-American Commission on Human Rights has identified as crimes against humanity, subsequently annulling the right to peaceful assembly and protest. The approval of Law 872 in 2014 subordinated the National Police to the Executive by designating the president as “Supreme Leader.” This has undermined the institution’s independence and credibility, and is why it must undergo deep and substantial reforms: so that Nicaraguans can regain confidence in the police force that is supposed to protect them.
For its part, the Ortega-Alemán Pact established a two-party system that included the sharing of Supreme Court of Justice (CSJ) appointments between the Sandinista National Liberation Front (FSLN) and the Liberal Constitutionalist Party (PLC). Additionally, in 2010, Ortega issued a presidential decree to extend the tenure of judges with expired terms, and in exchange, the CSJ removed barriers to presidential reelection. It is imperative that we restore the independence of the judicial branch and investigate, remove, and sanction any member of the judiciary who may have used the law to help commit human rights violations.
The Attorney General’s Office, for its part, has spearheaded a strategy aimed at reinforcing impunity and criminalizing social dissent and human rights defenders, exercising its power of criminal prosecution in inconsistent and disproportionate ways. Additionally, the prosecutor’s office has enabled the violation of the procedural rights of people arbitrarily detained and incarcerated for political reasons. Given the prospect of eventual change, structural methods should be adopted to restore the independence of the Attorney General’s Office, sanction officials who have behaved in improper and illegal ways, and support a criminal justice program based on memory, truth, justice, reparations, and the prevention of further serious human rights violations.
How to settle historical debts owed to targeted and victimized groups?
It is equally urgent that any programs for reform include a proposal that supports the future of those communities that have been historically and recently marginalized in Nicaragua. A transitional agenda must provide justice beyond the criminal prosecution of perpetrators. Victims of severe human rights violations have the right to a process of memory, truth, and reparations for the abuses they have suffered — a process that, in addition to being participatory and representative, should include concrete mechanisms and objectives for its implementation.
At the hands of the regime, women, and especially women activists and human rights defenders, have suffered particular persecution in recent years. There is thus a pending debt on the part of the state to guarantee their rights as well. Namely, programs for reform in Nicaragua must integrate methods for repairing the institutional integrity necessary to protect women from violence, and should eliminate barriers to sexual and reproductive freedom imposed by the current government. Indigenous and Afro-descendant peoples have long suffered the colonization of their territories regardless of shifts in the ruling party or political system. Those who wish to reinscribe the power of the Nicaraguan state must address the centuries-old debt owed to the Caribbean Coast communities, in a manner respectful of their autonomy and culture, and informed by development policies that eschew the hegemony of extractive industries.
There is not nearly enough space here to list all the communities who are looking to the renewal of legislative and executive powers as a moment for potential transformation. The truth is that, both before and after November, and inside as well as outside of the country, we must persist in asking the questions and demanding the answers necessary to prevent history from repeating itself in Nicaragua.
Guillermo Rodríguez García is an advocacy officer at the Center for Justice and International Law (CEJIL). Fernando Lorenzo Abril is a contributing intern in the area of program advocacy for Mexico and Central America, at CEJIL.
*Translated by Max Granger
FI name: April 2021