Is Ortega’s absence illegal? What Does Nicaragua’s Political Constitution Say?

The National Assembly to declare the President incapacitated or unable to govern is key. Parliament does not function as a power to counterbalance the Executive, so it is almost unthinkable to believe that Ortega will be legally held accountable for his actions.

The National Assembly to declare the President incapacitated or unable to govern is key. Parliament does not function as a power to counterbalance the Executive, so it is almost unthinkable to believe that Ortega will be legally held accountable for his actions.

The absence of Daniel Ortega for 34 days to today, Wednesday, April 15, is one of the most discussed topics at the moment in Nicaragua. Although periods of absence by Ortega have been common in these 13 years of his government, this time there is more attention due to the context of the health crisis caused by the new coronavirus pandemic.

Nicaragua president Daniel Ortega has not been seend publicly now for 34 days, the longest every during his last 13 years in office

Even so, the null presence of Ortega for more than a month does not imply criminal responsibility or legal effect, according to the assessment of article 149 of the Political Constitution, by the constitutional lawyer Gabriel Álvarez, La Prensa. reported

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The article refers to periods of absence of the President of the Republic for leaving the country and temporary absences from the public sphere.

The constitutionalist made it clear that the president cannot be removed, punished, or tried for depriving the citizenry of his presence.

Article 149 of the Political Constitution of Nicaragua

Article 149 is made up of at least 15 paragraphs (depending on how they are counted) in which a fault is not established for not appearing in public for more than a month, which is what would correspond in the case of the absence of Ortega.

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In the first six paragraphs, it refers to different periods of absence for being outside the country. For less than 15 days outside the country, you do not need authorization from the National Assembly. The President of the Republic may be absent from the national territory for more than three months with the authorization of the Legislative Branch.

In the following paragraphs, article 149 refers to temporary absences, among these due to “manifest temporary impossibility or incapacity to exercise office”, although this has to be declared by the National Assembly and approved by two-thirds of the legislators, it is to say, by 60 votes.

Impossible impossibility or disability

Álvarez stopped at these lines to explain that Ortega’s absence manifests a temporary impossibility or incapacity to exercise the presidency “for the simple reason that he is not seen (in public).”

“It may be temporary, it may be permanent or definitive, but in any case when there is a crisis of such magnitude and severity, which is probably one of the greatest crises in the history of humanity in the last century and a half, it is reasonable to argue that the president is manifestly incapacitated or incapacitated if he has not been seen,” said the lawyer.

National Assembly, dominated by the dictatorship, is key

Álvarez recognized that the role of the National Assembly to declare the President incapacitated or unable to govern is key. However, he also appreciated that in the current context, Parliament does not function as a power to counterbalance the Executive, so it is almost unthinkable to believe that Ortega will be legally held accountable for his actions or seek a replacement if not for a definitive fault, that is, by death, if that were the case.

The National Assembly to declare the President incapacitated or unable to govern is key. Parliament does not function as a power to counterbalance the Executive, so it is almost unthinkable to believe that Ortega will be legally held accountable for his actions.

The lawyer specified that without a doubt this situation of legal inaction in the face of the President’s absence, is possible because Ortega “has no division of powers to respect” and “is not subject to the limits and the system of checks and balances to the that a President of a democratic State is subject”.

Power vacuum
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For the constitutionalist, the current context could also be seen as a power vacuum legally speaking, because the National Assembly has not reacted to this absence, it cannot be said that they are using the legal mechanism to declare the vice president in office of the functions of the President, as appropriate in the absence of the latter, according to article 149.

“As the president has not been declared in a situation of temporary impossibility or incapacity, the vice president cannot, should not, exercise the functions of the presidency of the Republic,” said Álvarez.

Accountability

On the other hand, the lawyer stated that constitutional precepts cannot be read in isolation, that is, without taking into account the context that surrounds them. In this particular case, he pointed out that article 149 must be interpreted along with the obligation of public officials to be accountable to citizens and to be transparent in their public execution, as established in article 131 of the same Magna Carta.

“The President of the Republic is head of state and head of government. This is not a matter of style. It is not that his style is to appear or not appear before the nation. That is a political responsibility, that is implicit in the post of head of state, head of government and higher administrative authority,” said Álvarez.

The constitutionalist added that while a President may have a style of governing through Twitter, appear before the media every day or appear less than others, but what cannot happen in a State “is that nothing is known indirectly, except for what the vice president says or what the (president) signed”, alluding to the fact that the decrees signed by Daniel Ortega are not lacking despite his public absence.

 

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Nicaragua Adopts the Cuban – Venezuelan Model

In early October 2018, Daniel Ortega’s regime installed a state of siege via a Police decree prohibiting civic marches. The OAS Inter-American Commission for Human Rights warned at the time that Ortega instituted a de facto State of Emergency. He had essentially suspended constitutional rights such as the freedom of assembly and mobilization, free speech, and a free press.

The goal of the state of siege was to wipe out the independent civic protest and to suppress and divide the opposition. Further, they aimed to impose a false normality through repression. With this, they hoped to coopt the large business leaders and reestablish the regime’s political and economic alliances.

Nevertheless, looking at the facts, Ortega instead deepened his national and international isolation. In addition, for two consecutive years he aggravated the economic recession and the social crisis. This continued until the negligent management of the Coronavirus health crisis brought him an unexpected political invoice. The mismanaged public health crisis wore down the credibility of his leadership, even among the members of his own party.

The regime now announces the imposition of new punitive laws. There’s a push to allow the use of life sentences for certain crimes. There’s a new law to regulate supposed “foreign agents”, and a “cybercrimes” law, better known as the “Gag law”. With these, the regime is recognizing the failure of the police state. The repression never succeeded in squashing the civic protests. Even without massive demonstrations, the spirit of the resistance remains intact.  Despite the National Coalition’s stumbles and the lack of a united national front, today the resistance is greater and better organized. It now has a presence in all of the country’s municipalities.

In the next two weeks, the regime’s parliamentary steamroller will assure the approval of that combo of punitive laws. These impose severe jail sentences for any and all opposition, a majority who represent over three-fourths of the electorate.

However, in reality, the regime has never needed legal pretexts to repress and imprison. Almost two years ago, the police assaulted the offices of Confidencial and Esta Semana and executed a de facto confiscationThis was done without the backing of any judicial orders. Yet, despite the television censorship, they never silenced us. We continue our truth-based journalism. Meanwhile the independent press – persecuted, harassed and sometimes exiled – now enjoys much more credibility and influence than the official machinery.

The latest Cid-Gallup polls confirm that the majority of the population no longer believes the government’s lies about COVID-19. The express burials and the Ministry of Health statistics on pneumonia fatalities and COVID-19 tests speak for themselves. These facts refute the daily monologues of Vice President Rosario Murillo.  Because of that deception, every day political support for Ortega and the FSLN shrinks still more. His backing among the public employees, both civilian and military, continues eroding.

In reality, the “Gag Law” is aimed at threatening the honest and professional public servants. It is meant to keep them from leaking information to the press and the public regarding acts of political corruption.  Such acts are occurrences that the regime wishes to hide.

The “Cybercrimes Law” also threatens users of social media with jail time. However, the dictatorship will continue losing the battle for the truth in social media. They can’t control the massive exercise of free speech and the use of new information technologies now at the service of citizens.

These punitive laws aren’t a symptom of strength, but rather of the political and moral defeat of a minority regime. Why, then, does Ortega need to impose them against wind and tides?  There are at least three hypotheses to explain this imperious political necessity.  All are based on the regime’s urgency to adapt the Cuban and Venezuelan “model” of repressive authoritarianism to Nicaragua.

First, they intend to make full use of the Constitution and laws as one pillar of their repressive strategy. However, they don’t want these as guardians of rights, but as a means to criminalize democratic liberties and civic protest. Clearly, it’s not a carbon copy, but this strategy definitively reflects the Cuban and Venezuelan “model”. The regime is adapting that model to fit a dynastic family dictatorship with the aim of liquidating the democratic project in Nicaragua.

Expedited by the “Law” he’s mandating, Ortega will now be able to eliminate organizations of civil society. He will also control any eventual adversaries and political competitors, by criminalizing them as “foreign agents”. The Venezuelan experience demonstrates that despite high international political costs, the Cuban “model” can prove effective in giving the regime stability. Through this model, pure and harsh repression can be draped in a “legal” mantle. For Ortega, this translates into an incentive to accumulate political hostages and gain time.

Secondly, the regime intends to take over the agenda of justice and present itself as a punisher of “hate crimes”. The latter would now carry a sentence of life in prison. This, in the end, is merely a defensive act. It responds to the need to assure the Sandinista bases that they’re not the ones under the gaze of justice.

Those accused of true “hate crimes”, crimes against humanity, crimes with no statute of limitations, are in the regime’s inner circle. The finger points to members of the Ortega-Murillo regime who are most directly tied to the repression. However, as in the April killings and the failed official narrative of an attempted “Coup d’Etat”, Ortega will point the finger elsewhere. He’ll try to convince his followers that his own hate crimes can be attributed to the victims.

Thirdly, although the Nicaraguan Constitution proclaims political pluralism, this combo of punitive laws assures there’ll be no competitive elections. With these laws, Ortega has ratified his stance for the November 2021 elections. Given this, it’s illusory to expect some electoral opening from a regime that’s willing to play All or Nothing. Though they risk further international sanctions and a declaration of illegitimacy, they’ll be celebrating the elections with no competition and without transparency.

Will we arrive at the opening of the 2021 electoral campaign without a political reform?  The answer to this interrogative doesn’t depend on Ortega, but on the political opposition.  Ortega has already decided to radicalize his authoritarian model. Meanwhile, the opposition continues to be paralyzed. They’re discussing which electoral box is the safest, in imaginary elections in which they haven’t even been invited to participate.

Meanwhile, the national debate must center itself on determining the most effective strategy. The opposition must work on joining forces, weakening the regime, and altering the balance of power. They must thus force a political reform on the regime, one that results from national and international pressure. First, the reform, with or without Ortega, and later free elections.

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