San José, Costa Rica, since 1956

Sandinistas advance De Facto rule in ’10

Year in Review

President Daniel Ortega has always been a student of Central American history and politics. And last year the Sandinista leader apparently learned a very important lesson from Honduran coup leader Roberto Micheletti: de facto rule gets the job done.

After spending the second half of 2009 criticizing the illegality and illegitimacy of Honduras’ de facto authoritarian regime, Ortega started to implement a similar model of government in Nicaragua this year. And similar to the coup leaders in Honduras, who insisted their anti-democratic actions were really in defense of Honduras’ constitutional order, Ortega and his Sandinista sidekicks defended each one of their constitutional offenses as necessary measures to preserve Nicaragua’s democratic law and order.

Ortega’s first act of the year – the infamous presidential decree known as the “decretazo” – was also one of his most controversial, setting an authoritarian tone that carried through until the end of the year, when the president rammed his controversial defense-bill package through National Assembly in less than 10 days.

On Jan. 10, Ortega passed a polemic executive order extending the term limits of 25 top judges, electoral magistrates, comptrollers and other elected officials whose terms expired this year. Unable to muster the votes needed in Congress to re-elect his “dream team” government of Sandinista judges (several of whom are accused of corruption and, according to WikiLeaks, involvement with narco-traffickers), electoral magistrates (who are accused of vote-rigging) and comptrollers (who refuse to investigate allegations of Sandinista corruption), Ortega instead opted to issue a questionable decree extending everyone’s terms indefinitely.

Critics said presidential decree 3-2010, which became known simply as “el decretazo,” represented a “coup against the Constitution” and an ominous violation of government term limits. Former Supreme Court magistrate Alejandro Serrano said the decree effectively made Nicaragua a “de facto government,” while opposition lawmakers said the decretazo pushed Nicaragua into the category of “failed state.”

Ortega, however, argued that the move was needed to ensure stability and democratic governability in Nicaragua.

By the middle of January, Nicaragua was already back in political crisis mode after the brief respite provided by Christmas. But the Sandinistas’ theater of the absurd was just getting started.

In April, the Sandinistas tried to legitimize Ortega’s decretazo by reviving a dead article from the old Constitution. In what was called a “desperate and absurd” attempt to justify an illegal decree, National Assembly president Rene Núñez announced that he had “discovered” a forgotten paragraph from an old law (Law 201) that said magistrates of the Supreme Court, Supreme Electoral Council (CSE), Comptroller General’s Office and other institutions can remain in office until the National Assembly appoints new authorities.

When lawyers pointed out that the second paragraph of Law 201 had expired more than 20 years ago, Núñez – on orders from Ortega – slyly ordered the printing of a new version of the Constitution including the old article left for dead in 1990.

Analysts responded with exasperation.

“This eccentric and arbitrary decision by President Ortega is a demolition blow to the rule of law and a step towards a totally lawless government,” said analyst Felix Maradiaga. “With this decision, Ortega has turned back the clock to a time before the social contract.”

In April, the Sandinistas decided to put to test their plans to keep their cronies in power in a de facto manner. Using the excuse of Ortega’s decretazo and the newly revived Law 201, Sandinista Supreme Court judges Rafael Solís and Armengol Cuadra, whose terms on the high court expired April 11, refused to hand in their gavels.

When Supreme Court President Manuel Martínez ordered Solís and Cuadra to hang up their robes and vacate their seats on the court bench, the Sandinistas went on the offensive. Backed by a mob of Sandinista judicial employees – some carrying home-made mortars – the ex-judges stormed the courtroom, forced the Liberal judges out and converted Nicaragua’s top tribunal into a Sandinista kangaroo court.

Opposition lawmakers responded by trying to overturn Ortega’s decretazo during an extraordinary session of congress held in the Holiday Inn, to avoid Sandinista mobs outside the National Assembly. When the Sandinistas found out the opposition was meeting at the Holiday Inn, Solís and a gang of Sandinistas attacked the hotel with rocks and homemade fragmentation bombs, which shattered windows, destroyed part of the roof and terrified guests.

The National Police prevented the mob from storming the hotel lobby, but did nothing to stop the attack or make any arrests. When the opposition lawmakers tried to escape from the hotel, the Sandinista mob attacked their vehicles, injuring two Liberal Party congressman.

“This is the first time anywhere in the world that a hotel has been attacked head-on like this,” said Holiday Inn general manager José Enrique Solorzano. He estimated the damage at $20,000, plus another $20,000 in lost revenue due to canceled events and reservations.

The Nicaraguan-American Chamber of Commerce (AMCHAM) was quick to denounce the attack as an act of “terrorism” and accused the Sandinistas of “gangsterism.” The business chamber lamented that the Sandinistas “continuously destroy the work we have done to improve our international image.”

The ruling party completed its de facto takeover of the Supreme Court in August, using substitute judges to replace the missing Liberal judges.

Legal analysts claim the judicial situation in Nicaragua this year went from bad to worse to ludicrous.

“The Supreme Court has become a complete circus,” said former Supreme Court president Roberto Argüello, who served as the top judge during the revolutionary Sandinista government in the 1980s. “The judges are usurpers and everything that they do is legally null and void.”

He added, “I have been a lawyer for 55 years and I have never seen an anomaly like this – not even during the government of (former dictator Anastasio) Somoza. The Organization of American States should intervene here because this is a coup d’ état against the court. The entire judicial branch of government does not work.”

The United States government also issued a strong criticism of Nicaragua’s judicial system last August (four months before the first WikiLeaks came out revealing the U.S. government’s concerns over the judicial system’s ties to narco-traffickers).

“Nicaragua’s judiciary remained highly politicized, corrupt and prone to manipu-lation by political elites and organized crime and therefore remained a vulnerability that could be exploited by international terrorist groups,” reads the State Department Country Reports on Terrorism.

                                                              Supreme Electoral Corruption

The judicial system wasn’t the only branch of government to be accused of massive corruption under its questionable leadership this year.

Nicaragua’s sullied Supreme Electoral Council (CSE), led by de facto president Roberto Rivas, who refused to leave office after his term expired in June, has also been the subject of repeated allegations of corruption.

Rivas, who oversaw the scandalous 2008 municipal elections in which the Sandinistas are accused of stealing 40 municipalities, was accused on various occasions this year of corruption and illicit enrichment.

In Costa Rica, where Rivas owns at least one mansion, authorities this year investigated the magistrate for alleged customs-tax fraud for claiming embassy exemptions to avoid paying $95,000 in Costa Rica import taxes on three luxury vehicles – a brand new Mercedes Benz, BMW and Porsche. 

Though the charges didn’t stick, Rivas has yet to explain how he afforded to purchase the three vehicles, plus his mansions and a yacht, on his $60,000 government salary.

Rivas caused further scandal this year when it was revealed that he was illegally charging impoverished Nicaraguan citizens 300 córdobas ($14.50) to renew their state identification cards (cédulas), which by law are free.

Rivas’s financial scandals didn’t stop there.

In November, a La Prensa investigation revealed that Rivas recently bought his second airplane for $507,000. A week later, it was revealed that the National Assembly reimbursed the CSE for a $1.7 million private loan that Rivas took out from a bank without government authorization and without providing clear account for how the money was used.

Despite the numerous scandals, the de facto Sandinista-controlled Comptroller Generals’ Office has refused to audit Rivas or the CSE.

Rivas continues to be protected by the Sandinista Front, which wants the portly magistrate to be reelected next year to continue his good work counting ballots. The Sandinistas’ insistence on Rivas’ reelection has stonewalled the congressional elections for new magistrates and judges this year.

Municipal Ousters

Cesar Aviles

The General: Gen. Julio César Avilés helped set the stage for the approval of the defense-law package in December.

Tim Rogers

The Sandinistas extended their de facto takeover of government institutions on the municipal level as well. After allegedly stealing more than 40 mayor’s seats in the 2008 mayoral elections, the Sandinistas this year continued to muscle the opposition out of mayors’ offices they wanted for themselves.

In 2010, seven democratically elected mayors, vice-mayors and city councilmen belonging to the opposition were either “convinced” to switch party allegiances to join the Sandinista Front – as was the case with the mayor of Granada – or were outright forced from office.

The most egregious case occurred last June in the municipality of Boaco, where Sandinista activists and the National Police forcibly dragged Mayor Hugo Barquero from office after he refused to step down based on the Sandinistas’ allegations of corruption.

“They hit me and dragged me out of the mayor’s office,” Barquero told The Nica Times in a phone interview June 28, on the one-year anniversary of the coup in Honduras. “This is completely illegal, completely illegitimate and unconstitutional.”

Barquero was replaced in office by de facto mayor Juan Obando, an Ortega supporter. The allegations of corruption against Barquero were never proven.

Even lawmaker Augustin Jarquín, a Sandinista ally and president of the legislative commission on municipal affairs, said Barquero’s ouster was illegal. But it was never overturned, and the Sandinistas’ de facto control over the municipality of Boaco continues.

 The Sandinistas’ takeover of the judicial and electoral branches, plus their continued encroachment upon municipal governments controlled by the opposition, marked a new low point in the decade-old power-sharing “pacto” between Ortega and opposition leader Arnoldo Alemán.

But as analyst Cirilo Otero wisely predicted in April, the crisis in the pacto was heading towards “a bad fix, rather than a good fight.”

“This is the crisis before the new pacto is formed,” Otero predicted. “The crisis will push Nicaragua to the edge of the precipice, and then there will be a reconstitution” of the power-sharing arrangement.

Indeed, on Dec. 13 the new pacto was apparently born when Alemán’s lawmakers agreed to support Ortega’s controversial defense-law package, most likely in exchange for posts on the new Supreme Court, Supreme Electoral Council and National Assembly directorate  elected next year.

Taking De Facto International

By the end of the year, the Sandinista government was apparently feeling so confident about the success of its “possession-is-nine-tenths-of-the-law” domestic policies that they started to employ the same strategy in its foreign policy.

On Oct. 18, the government, under the questionable leadership of former guerrilla leader Edén Pastora, began a river-dredging operation along the last 28 kilometers of Nicaragua’s San Juan River, which traces a section of the border with Costa Rica.

Though the Sandinista government originally said it only planned to “clean” the delta of the river, it soon became clear that the dredging operation was also cutting a channel through a swath of forest to connect the river to the Portillos Lagoon.

Four days after the dredging project started, Costa Rica denounced that Nica-raguan troops had invaded Tico territory, felled trees and occupied a swamp island known as Isla Calero. Tico authorities complained that the river-dredging operation had strayed south of the border and was cutting into Costa Rica’s protected forests.

Costa Rica appealed to the Organization of American States, which on Nov. 12 passed a resolution by a vote of 22-2 calling on Nicaragua to remove its troops from the disputed area until a bilateral resolution could be worked out. Ortega, however, refused to recognize the OAS resolution or withdraw his troops from the area. He also refused to stop the dredging operation.

When an OAS delegation conducted a follow-up flyover the disputed region on Nov. 26, two weeks after passing the resolution, they found nothing had changed and that the Nicaraguan government was continuing forward.

“My impression is that the area where trees have been felled is greater than during the previous observation, tents can be seen in the location, the Nicaraguan flag, and the entrance of the river course in the Río San Juan can be clearly distinguished, better than during our previous fly over,” reported OAS Ambassador Dante Caputo. “In conclusion, everything seems to indicate a Nicaraguan presence still in the area, with certain evidence of a military presence. In addition, the felling of trees and the opening of a river channel in the area can be seen.”

Indeed, while Costa Rica continues to ask the international community for help, Nicaragua has continued to occupy and dredge the land it claims to own. As Costa Rica tries to appeal to international law by taking the case before the International Court of Justice at The Hague, Nicaragua has pushed forward and finished cutting its river channel through the woods.

It appears that once again – at least for now – the Sandinista government’s policy of “act first and worry about the law later” has achieved its intended goal – only this time on an international level.

En Río Revuelto…

Unlike any other moment since President Ortega returned to office in 2007, the San Juan River conflict with Costa Rica last November helped to galvanize a sense of patriotism and national unity in Nicaragua.

With nationalistic passions running high, Ortega and the military brass took advantage of the moment to quickly pass a new set of sweeping reforms to Nicaragua’s national defense and security policies. The  new laws, which have been likened to the U.S. Patriot Act, give the president and army a new legal structure for social control – including the creation of new intelligence gathering networks as well as the ability to declare martial law to defend Nicaragua’s “established democratic structure.”

Critic claim the three laws – The National Defense Law, the Border Law and the National Security Law – represent a dangerous step towards militarizing the country and putting state security above civil liberties.

The military’s role in setting the stage for the legislation, and then actively lobbying lawmakers for its approval, has also raised suspicions.

In an unsettling political speech given by Nicaraguan Army Gen. Julio César Aviles before an extraordinary session of congress held in San Carlos on Nov. 10, the top military commander denounced Costa Rica’s “expansionist pretensions” and accused the neighboring nation of “generating conflict and hostilities” as part of “systematic campaign” to usurp Nicaraguan territory.

“It is our patriotic duty to defend Nicaragua. We all need to unite against Costa Rica’s plans,” the general said.

A month later, the national defense and security bills were presented and passed, using some of the same language from the general’s speech.

Ortega said anyone who refused to pass the laws immediately was a “traitor to the nation.”

In hindsight, Aviles’ speech set the tone in congress for the rushed approval of defense legislation. The timing of his speech and the vote on the defense-bill package has since raised suspicions about whether the San Juan River conflict was, at least in part, created by Ortega and the military to get the laws passed and renegotiate the terms of the power-sharing pacto before the end of the year.

In the end, analysts say, the new laws will give Ortega the legislative tools he needs next year to continue consolidating power and use military or paramilitary force to back his de facto bid for reelection in November 2011.

“These laws institutionalize Ortega’s paranoia and authoritarian style of govern-ment,” said constitutional law expert Gabriel Alvarez.

“These laws legalize dictatorship,” echoed lawyer and former Sandinista military colonel Víctor Boitano.

After a year of anti-democratic abuses capped off by the approval of the new national defense and security laws, a very ominous cloud hangs over Nicaragua in 2011, as the country enters what promises to be one of its most contentious electoral cycles in decades.

Looking at the full picture of political events from 2010 also gives a chilling sense of prophecy to the words of warning that ousted Boaco Mayor Hugo Barquero uttered to The Nica Times back in July.

He said, “First they are going to come for us, and then they will come for our properties and for our businesses. And eventually they will come for our children, who are going to have to depend on the state for survival or become cannon fodder for a forced military draft.”

Let’s hope he’s wrong.

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