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

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.

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

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.

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

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.