A TALE OF TWO CRISES:
THE 1995 AND 2005 CONSTITUTIONAL CONFLICTS IN NICARAGUA
Shelley A. McConnell
Senior Associate Director
Americas Program
The Carter Center
NOT FOR CITATION
ABSTRACT
In 1995 and again in 2005, Nicaragua underwent a serious political crisis as the legislature sought to curtail the powers of the presidency through constitutional reforms. In both instances the two branches of state recognized different versions of the constitution, a situation that endured for 5 and 10 months respectively. On each occasion there was talk of impeaching the president, and the international community grew concerned that the conflict could endanger Nicaragua’s young democracy. International efforts succeeded in resolving the crisis in each instance, but the nature of that intervention changed from imposition by creditor nations to facilitation by neighboring democracies under the Inter-American Democratic Charter. The change reflects how far the Western Hemisphere has come in articulating the collective defense of democracy.
New Material
Since makings its triple transition to peace, democracy and a market economy in 1990, Nicaragua has undergone two protracted constitutional crises. The first took place in 1995 and lasted five months, and the second in 2005 for ten months. On each occasion, the legislature had passed a partial reform of the 1987 constitution to decrease presidential power and transfer important faculties from the executive to the legislative branch. In both instances, the president refused to publish the reform, despite the fact that doing so was required under the constitution’s reform procedures. In response, the legislature itself published the reforms, and from that point forward the two branches of government recognized different constitutions.
The substance of the changes was significant, and the texts mutually exclusive, so within a short period of time the each branch began taking actions that the other contested as illegitimate. The longer the crisis dragged on, the higher the number of inter-institutional disputes rose, dragging other state institutions such as the courts and the electoral authority into its whirlpool. The two branches forced further and further apart until the crisis became so critical that legislative leaders called for the president’s impeachment, and foreign government and multilateral organizations found the political environment untenable. Elsewhere in Latin America this would likely have resulted in a military coup, but in Nicaragua both crises were ultimately resolved through a mediated accord codified in a piece of ordinary legislation, a so-called “Framework Law.”
Rarely does history hand social scientists two such comparable case studies. These constitutional crises and their resolution offer us an opportunity to test hypotheses about democratic consolidation, institutional development and conflict resolution in most similar systems. They also offer an opportunity to consider path dependent models and political learning, since many of the political leaders from the 1995 crisis were also involved in the 2005 crisis.
This paper focuses on the role of international actors in crisis resolution, for although constitutional reforms concern domestic politics, in highly-dependent countries such as Nicaragua foreign penetration of the political system frames even this most sovereign matter. Fundamentally the paper explores the patterns of foreign intervention by different types of actors – the regional hegemon, other foreign governments, intergovernmental organizations, and international non-governmental organizations. This is not to suggest that the crises were resolved primarily due to foreign rather than domestic efforts, but rather to consider which types of foreign intervention were the most successful and how that has changed over time. The analysis offers substantial support for the contention that complex interdependency is now a more accurate model of the international system than the traditional realist state-centric model, even where the hegemony of the United States has been exercised with disturbing regularity and one would be hard put to support a claim of hegemonic decline.
Understanding the role of foreign actors required a close case study of each crisis in order to conduct process-tracing of the stream of decision-making behavior by key players. Behind this paper, then, lies a detailed chronology that identifies critical events and important decision points, and a blow-by-blow account of the shifting relationships between and among domestic and international actors. For the sake of brevity, and lest readers who are not intrinsically interested in Nicaragua become bored, much of that detail has been omitted here. Instead, an overtly comparative structure has been imposed on the two cases, allowing us to subtract the commonalities and focus in on the differences as they pertain to the theoretical questions at hand.
Introduction
In 2004, Nicaragua entered into a political crisis that challenged its young democracy. The essence of the crisis was a clash between the legislative and executive branches that resulted in a constitutional impasse and threats to impeach the president. The crisis dragged on for a year before finally being resolved after OAS intervention under the Inter-American Democratic Charter (CDI).
This was the first time that a president had called for OAS assistance under Articles 17 and 18 of the CDI, and was a test case of the accord’s effectiveness. The willingness of the OAS to use the CDI absent the consent of the government in question is low due to historic concerns about foreign intervention in the internal affairs of member states. Thus it is foreseeable that most assistance under the CDI will be taken under Articles 17 and 18 rather than Article 20. The 2004-05 constitutional crisis in Nicaragua is thus a useful test case for understanding whether and how the Inter-American Democratic Charter works. It is a “best case” scenario: if the CDI does not work in Nicaragua when it is invoked with the consent of the government, it is unlikely to work at all.
How did international factors in general and the CDI in particular helped shift domestic actors’ calculations to frame a resolution to constitutional crisis, if indeed they did at all? This paper sets out to explore that question via a close case analysis of the evolving strategic calculations of key national actors – the Bolaños government, the Sandinista National Liberation Front (FSLN) and its leader Daniel Ortega, and the Liberal Constitutional Party (PLC) and its leader Arnoldo Alemán. Recounting events between September of 2004 and October of 2005, it tracks the actions of six international actors – the Organization of American States (OAS), the United Nations (UN), the Central American Court of Justice (CCJ), the Central American Integration System (SICA), The Carter Center and its Friends of the Democratic Charter nongovernmental group, and the government of the United States of America. The OAS and SICA took actions they would not have been able to absent the CDI. The Friends of the Democratic Charter took their actions in reference to the CDI, and it was also one important element cited in the decisions of the CCJ. The United States lightly referenced the CDI but it would likely have taken the actions it did outside the OAS regardless of whether the CDI had been invoked. The UN did not reference the CDI at all.
The paper concludes that international efforts were important in resolving Nicaragua’s democratic crisis. The Inter-American Democratic Charter expanded the scope of the confrontation to include the international community, temporally extended the confrontation until the incentive structures for crisis resolution shifted, and raised the costs to the political parties of pursuing impeachment, thus helping to structure a deadlock in the power struggle between the executive and legislative branches. The 2006 electoral cycle provided a generalized timeframe for resolving the crisis, but the date for Nicaraguan approval of the CAFTA free trade agreement provided a more specific deadline for the legislature to relinquish its economic pressure on the president.
Background to the Crisis
It is impossible to understand the nature of the threat to democracy imposed by the 2004-05 crisis in Nicaragua without reference to the political pact reached between the caudillo leaders of the FSLN and PLC in 2000. Their agreement divided up state power between their parties at a time when PLC leader Arnoldo Alemán held the presidency and former President Daniel Ortega was content to make the FSLN the junior partner if it would assure the party’s survival. This was a classic example of pacting in which each party guaranteed the vital interests of the other, limiting its own ability to damage the other while permitting continued competition between them. But unlike Spain’s Moncloa Pact that had bound competing parties to a common democratic set of rules and procedures, or Venezuela’s Pacto de Punto Fijo that excluded anti-system parties (the communists), Nicaragua’s pact effectively excluded many other actors from competition for state power in what amounted to a cartelization of the state.
Called a “governability accord” by its authors, the agreement packed the Supreme Court and Supreme Electoral Council, giving the PLC and FSLN all the seats in roughly equal numbers and excluding other parties from representation. It also changed the Comptroller’s office into a collective body and divided those seats among the two parties. The electoral system was politicized by requiring that the majority of officials at all levels – national, departmental, municipal and even at the polling stations – be named by the FSLN and PLC, and that any remaining posts be divided up among all other parties in a manner that fractured their influence. The Electoral Law was reformed to reduce the plethora of parties that had emerged in the post-transition 1996 elections with draconian new requirements for party registration and strict limits on candidacies. Independent candidates were eliminated even from local elections. Partisan interpretation of the Electoral Law worsened exclusion. Nicaragua became a patridocracia.
In the first post-pact national elections, held in 2001, Enrique Bolaños was elected to the presidency on the Liberal Constitutional Party ticket. Although he had been vice president under the party’s founder, former President Arnoldo Alemán, Bolaños unexpectedly accused Alemán for corruption. With the help of Sandinista votes in the National Assembly, Alemán was stripped of immunity, prosecuted and jailed in what was probably an attempt by Bolaños to wrest the PLC out of Alemán’s control. However, few PLC member shifted their allegiance to Bolaños, and he emerged without the support of the majority of its deputies in the National Assembly. Until 2003, President Bolaños relied on Sandinista votes to pass legislation, together with a half-dozen secure votes of his own and a handful of others who occasionally offered support. While this was a functional government alliance, it gave the FSLN a great deal of weight in determining policy, to which the United States vehemently objected. Moreover, Daniel Ortega was able to dangle the prospect of a pardon in front of Alemán, thus capturing his party’s votes much of the time, slowly making the FSLN into the senior partner in the ongoing pact.
After a visit from then-Secretary of State Colin Powell, President Bolaños broke off his relationship with the FSLN. Sandinista leader Daniel Ortega was a nationalist with a long history of clashes with the US government, which had tried to overthrow him through covert action against his revolutionary regime in the 1980s. He reportedly viewed Bolaños’ strategic shift as a personal betrayal and proceeded to tighten his cooperative relationship with Alemán and the PLC, and impede President Bolaños’ governing agenda.
The Impeachment Threat Arises
The alienation of President Bolaños and palpable hostility from both Alemán and Ortega came to a head in the fall of 2004. On October 7, the Comptroller General called for Bolaños’ removal from office, alleging that he had refused to cooperate in an investigation of his campaign finances from the 2001 election. Specifically, the Comptroller claimed that President Bolaños had failed to declare foreign funds as is required by law. The National Assembly said that it would appoint a committee to look into the matter the following week.[1]
The Comptroller’s office had been brought under the control of the PLC and FSLN parties as part of the 2000 pact between them. Previously the Comptroller had been a single official, but this was changed to create a council of five comptrollers whose membership was appointed three from the PLC and two from the FSLN. The threat to impeach was therefore perceived as a political move by the pacting parties. The merit of the accusation was secondary, and although President Bolaños did muster material to deflect the claim he recognized that it was the politics behind the allegations that demanded a response. Bolaños shot back that the move to impeach him was illegal, and noted that the constitution did not specify grounds for impeachment.[2]
This was the beginning of a political crisis in Nicaragua that would bloom into a constitutional crisis that would threaten democratic governance and paralyze the political system for a year. The OAS would play a role in resolving that crisis, and the Inter-American Democratic Charter would frame much of the response from the international community. However, the OAS was simultaneously undergoing its own leadership crisis. On October 8, just one day after the Comptroller General’s call for Bolaños’ impeachment, OAS Secretary General Miguel Angel Rodríguez announced his resignation under a cloud of suspicion concerning corruption charges in Costa Rica related to his presidency. A week later he left office, handing leadership of the OAS over to his deputy, Luigi Einaudi, an American who became Interim Secretary General.