Once again Daniel Ortega was sworn in as President of Nicaragua for a fourth consecutive term as of January 10th, 2022. This alarming reelection has generated widespread media outrage on both domestic and global levels. On a national level, mass protests have mobilized against the left-wing Sandinista National Party, accusing it of undermining democracy through electoral fraud. On an international scale, regional organizations such as the OAS and the EU and several political leaders have publicly condemned Ortega’s reelection.
These claims regarding Nicaragua’s antidemocratic governance are not new, rather they have intensified heavily since Ortega first came into power. According to Freedom House’s 2022 Freedom in the World report, Nicaragua has not fared well on the democratic scale with a score of 23/100 and ranking far below average in terms of political and civil liberties. Amnesty International has documented numerous human rights violations that occurred under his leadership; these include violent repression of protests, criminalization of social activists and journalists, suppression of press freedom and restrictions on media outlets. On top of these violations, Ortega has engaged in a plethora of corruptive and coercive political acts to yield electoral outcomes in his favor and eliminate opposition.
The question underlying the recent backlash is “How is Ortega able to commit these atrocious violations without punishment?” The answers lie in the mechanisms of “stealth authoritarianism” that enable a would-be autocrat to consolidate power. According to Professor Varol’s definition, Ortega falls under the new category of authoritarian leaders who use the same legal mechanisms that exist in their democratic regimes to perpetuate power. [1] Harvard Professors Levitsky and Ziblatt would likewise agree that the key characteristic of these successful antidemocratic practices is the veneer of legality under which they are carried out. It is these subtle mechanisms that have allowed Ortega to engage in explicit authoritarian behavior with impunity. [2]
In 2014, the Sandinista legislative majority, led by Ortega, pressed to ratify a “game-changing reform” that would indefinitely extend presidential reelection under the pretext that it was necessary for ensuring economic stability. A 60% majority vote in Nicaragua’s National Assembly is required to pass a constitutional amendment. Ortega successfully won the constitutional amendment with a 64 – 25 final vote. This amendment eliminated provisions contained in Article 147 that capped presidential candidacy at two-terms, prohibited consecutive reelection, and set a minimum vote level requirement. However, no changes were made to Article 148 which mandates a 5 year term reelection for both the president and vice-president. The strategic choice of the Sandinistas to modify Article 147 but leave Article 148 untouched is an example of how would-be autocrats often will implement democratic reform in such a way that conceals their antidemocratic intent. Although Ortega has evaded his numerical and consecutive term limits, he still has to be reelected every 5 years. This constitutional amendment ultimately paved the way for Ortega’s 2016 and 2021 reelections.
These events raise doubts as to whether constitutional safeguards are, by themselves, enough to guarantee democracy. In their book, How to save a Constitutional Democracy, Law Professors Ginsburg and Huq argue that constitutions cannot alone safeguard against the rise of would-be autocrats as they contain numerous ambiguities and are open to competing interpretations. This was the case with Ortega’s 2011 election which ignited much controversy over the legitimacy of the Supreme Court’s decision to declare Article 147 “unconstitutional.” If a constitution lacks “formal, textual protection of bureaucratic autonomy” and fails to provide “conventional and statutory checks” on the various institutions and branches of government, then would-be autocrats can easily exploit these constitutional weaknesses to further consolidate power. [3] Levitsky and Ziblatt argue that it is the strength and robustness of a country’s democratic norms which reinforce the constitutional checks and balances that are supposed to safeguard against rising authoritarianism. [4]
As this is his sixth overall reelection as head of State, Ortega boasts the title of longest-serving presidential leader in the Americas. Ortega has now been equated to the role of a dictator and Nicaragua’s democratic regime appears to be quickly transitioning to that of a full autocracy. The international community has only recently begun to raise awareness to the human rights violations suffered by Nicaraguans. The UK and the U.S. have imposed travel sanctions on Ortega and his allies and have withdrawn several funding campaigns. The question now is whether it is too late to remedy Nicaragua’s democratic erosion?
[1] Ozan Varol, “Stealth Authoritarianism,” Iowa Law Review 2015, pg. 1684. [2] How Democracies Die by Steven Levitsky and Daniel Ziblatt, Crown Books 2018, pg. 7-8. [3] How to Save a Constitutional Democracy, by Thomas Ginsburg and Aziz Huq, University of Chicago Press 2018, pg. 150-153. [4] How Democracies Die by Steven Levitsky and Daniel Ziblatt, Crown Books 2018. pg. 101.
Anna Lee argues that Daniel Ortega, President of Nicaragua has just been reelected for a fourth term because he has found a way to manipulate the constitution and exploit its weaknesses. I agree with this position as constitutions have proven to be insufficient to preserve democracy.
Firstly, what is democracy? According to Robert Dahl, a true democracy is the continuing responsiveness of the government to the preferences of its citizens, treated as political equals. However, as no country is fully democratized, Dahl argues that the most democratized countries today are polyarchies. He defines these as not fully democratized regimes that practice high levels of liberalization (i.e., public contestation) and inclusiveness (i.e., participation in the regime). [1]
Many polyarchies thus have constitutions that attempt to preserve their democratic practices, but Levitsky and Ziblatt argue that they are certainly not sufficient to carry out such a task. Mainly, constitutions are quite vague, incomplete, and easy to manipulate or interpret in different ways. First, as constitutions are documents that do have an end, they can be very vague. They do not detail every step in overcoming certain issues and do not even have answers to others. As time goes by, new issues, such as economic crises, arise which are not yet addressed in a country’s constitution. For this reason, they will forever be incomplete. This problem creates danger for the preservation of democracy as constitutions become easy to exploit. [2]
History has shown that authoritarians have used constitutions’ vagueness to consolidate power. For example, after being elected, Adolph Hitler took advantage of his constitution by making amendments and creating new laws to suppress the Jewish population. As the crisis in Germany was a rather new issue, the authoritarian leader was thus able to manipulate existing policies. Anna Lee describes President Ortega’s similar process of manipulation as he amended Nicaragua’s constitution in order to extend his reelection. Ortega explained that the reasoning behind this extension was to stabilize the economy, which thus allowed citizens to support his erosion of democratic practices. Therefore, as constitutions can be easily manipulated by those in power, they are not sufficient, and as the author argues, their amendments can be “a direct route to indefinite power.”
In addition to constitutions, we also rely on democratic norms to preserve democracy. The author introduces Levitsky and Ziblatt’s argument about how following these norms are necessary as they are the soft guardrails of democracy. The two main processes of following norms that they discuss are institutional forbearance and mutual toleration. Institutional forbearance is the act of controlling or restraining oneself from exercising a legal right. As mentioned above, constitutions are incomplete; therefore, certain rights might be legal as they are not addressed or condemned in the constitution. However, by following institutional forbearance, politicians restrain themselves from exercising certain rights that go against the already established norms of democracy. For example, while a president is legally allowed to pass executive orders, it can go against political norms. Mutual toleration is the act of accepting and respecting political rivals’ legitimacy and right to exercise power. This “agree to disagree” sentiment signifies that opposing parties/politicians tolerate each other’s participation in the political game and cannot question each other’s right to do so if they are following constitutional rules. [2]
By following both the constitution and these democratic norms, we hope to achieve Schmitter and Karl’s democratic bargain, which serves as an unwritten contract of maintaining democracy between the government and the people. This contract consists of two concepts: contingent consent and bounded uncertainty. Contingent consent refers to the acceptance of the winning political party’s ability to exercise their legal power. This consent is contingent because it is based off who has democratically won an election. Thus, while the winning party is ruling, the losing party must consent to their power, but only until that party is no longer in power. Bounded uncertainty continues this emphasis on trust and acceptance of the majority party’s power. This term signifies that while the majority party is in power, they will not abuse their rights as they one day will become the minority party and do not want to be abused in that position. These two concepts are bound by mutual trust between the parties, which is what makes them both extremely strong and fragile at the same time. [3]
This trust can thus be broken very easily, which causes the soft guardrails of democracy to collapse. For example, during his administration, President Obama passed several executive orders that, while not breaking the constitution, broke political norms. The breaking of norms such as these can eventually lead to democratic erosion. Most importantly, this can allow new authoritarians to enter the political world and further erode democratic practices. For example, Donald Trump is notorious for disrupting the American political world from the start of his 2016 presential election campaign. He entered an already tense and polarized political world and broke several democratic norms. The author of this article argues that President Ortega is an authoritarian who has used several of the methods described above to consolidate his power. His antidemocratic actions are thus reflected in Nicaragua’s score of 23 out of 100 on the Freedom House’s 2022 Freedom in the World report’s democratic scale. Therefore, since both constitutions and democratic norms are necessary to preserve democracy, and because these norms are so easily broken, constitutions currently only seem to delay the process of democratic erosion. [2]
[1] Dahl, Robert. 1972. Polyarchy: Participation and Opposition. New Haven: Yale University Press. Chapter 1.
[2] Levitsky, Steven and Ziblatt, Daniel. 2019. How Democracies Die. New York: Penguin Random House LLC.
[3] Phillipe Schmitter and Terry Lynn Karl, “What Democracy Is . . . and Is Not,” Journal of Democracy, Summer 1991: 75-88.