Limited Engagement: New Rules for Election Observation in Nicaragua:

Shelley A. McConnell, St. Lawrence University

DRAFT: NOT FOR CITATION

Paper presented at the Congress of the Latin American Studies Association

May 2013, Washington DC

Limited Engagement: New Rules for Election Observation in Nicaragua:

Shelley A. McConnell, St. Lawrence University

Scholars of international relations have debated the extent to which

globalization and the rise of new political actors have curtailed or even redefined

state soveriegnty. Because elections are viewed as a quintessentially sovereign

exercise, state acceptance of international election observation is seen as a litmus

test of the strength of international norms of democracy and their capacity to

constrain state behavior. It is sometimes argued that they diminish sovereignty as it

is traditionally conceived.

In Latin America, international election monitoring has been routinized as an

accepted practice. Indeed, with an entire chapter of the Organization of American

States’ Inter-American Democratic Charter devoted to it, election observation has

been celebrated as a new regional norm in the Western Hemisphere.1 Moreover,

studies have suggested that good quality elections in Latin America are most often

monitored ones, suggesting that election monitoring may have real effects in

consolidating democratic governance.2

Recently, however, signs of resistance to election monitoring have emerged.

States increasingly are willing to risk international disapproval by curtailing

international election observation. How should we understand this change? 1 Organization of American States, Inter-American Democratic Charter, Chapter V. www.oas.org2 Jonathan Hartlyn, Jennifer McCoy, et al., “Electoral Governance Matters: Explaining the Quality of Elections in Contemporary Latin America,” Comparative Politics Studies 41, no.1 (2008).

Although there may be a correlation between such resistance and democratic

backsliding into electoral authoritarianism, conversely in some countries opposition

to election observation may result from democratic deepening as leaders’ try to

garner credit by signaling that they no longer require international help to

consolidate electoral institutions. Push-back on election observation can also reflect

an inherent tension between the principles of soveriegnty and universal human

rights that even established democracies feel. To the extent that states manipulate

the rules and conditions for international observation rather than rejecting it

outright, they may be engaged in a process of norm localization, adapting imported

norms to pre-existing normative structures rather than evading global or regional

norms.

As part of a broader co-authored project that will encompass Russia, Egypt

and Venezuela, this paper examines the backlash against election observation in

Nicaragua. It is a particularly telling case because international election observation

was carried out on a massive scale during Nicaragua’s 1990 elections, which

ushered in a transition to democracy. International election observation may have

had constitutive effects on Nicaragua’s electoral system. Written in to electoral law

and broadly supported by the public as a guarantor of electoral legitimacy,

international election observation in 1996, 2001 and 2006 seemed to indicate that

there was an embedded norm. For the 2011 national elections, however,

Nicaragua’s Supreme Electoral Council (CSE) put in place restrictive regulations that

violated the United Nations’ principles for international election observation. The

present paper traces Nicaraguan resistance to international election monitoring and

finds evidence that the backlash was part of a broader pattern of resistance to

perceived foreign intervention informed by the governing party’s particular brand

of nationalism and attachment to a discourse of sovereignty. The fact that the

international norm of election observation has now been subordinated to deeply-

ingrained informal institutions of pacting and patrimonialism speaks to the limits of

norm transmission and the utility of a model emphasizing norm syncretization.

On Sovereignty, Norms, Democratic Consolidation and Election Observation

This examination of changed election observation rules and practices in

Nicaragua is informed by the literatures on sovereignty, international norms,

democratic consolidation and election observation.

Scholars of democratic transitions have sought to explain why some new

democracies suffer reversals and others endure and deepen. Among the many

factors hypothesized to promote democratic consolidation is the spread of

international norms of democracy. Norms are “shared expectations about

appropriate behavior held by a collectivity of actors.”3 They establish “standards of

behavior defined in terms of rights and obligations.”4 Latin America has a long

history of regional norm development, having evolved norms of sovereignty,

nonintervention, pacific settlement of disputes, human rights, democracy, and

3 Checkel, Jeffrey T. Checkel,1999. “Norms, Institutions and National Identity in Contemporary Europe,” International Studies Quarterly 43, no. 1 (1999): 83.4 Stephen, Krasner ed., International Regimes (Ithaca: Cornell University Press, 1983), p. 3.

transparency (anti-corruption), among others.5 International election monitoring is

touted as a recent addition to this mix.6

Realists have conceptualized international norms as one element of

international regimes, and argued that they are consistent with sovereignty in that

regimes are a reflection of state interests and power. Liberals have emphasized that

regimes may be codified in formal agreements between states and managed through

international institutions as a means to overcome information deficits and enable

cooperation. Thus international relations theory has been adapted to explain

cooperation among states in an anarchic international system, including

cooperation to collectively promote and defend democratic governance as the

preferred regime of the most powerful state actors. The institutionalization of

international election observation via a variety of international agreements

elaborated by member state organization such as the Organization for Security and

Cooperation in Europe (OSCE) and the Organization of American States (OAS) is in

this sense not difficult for realists or liberals to explain, especially given US

willingness to act unilaterally in violation of such accords when American security

interests trumped its preference for democratic allies.

5 The Western Hemisphere norms include respect for sovereignty, non-intervention, peaceful settlement of disputes, territorial integrity, convivencia, uti possidetis, nuclear nonproliferation, representative democracy, election observation, and transparency. See Kacowicz, Arie M. 2005. The Impact of Norms in International Society: The Latin American Experience, 1881-2001. South Bend, Indiana: University of Notre Dame Press; and Shaw, Carolyn M. 2004. Cooperation, Conflict and Consensus at the Organization of American States. New York City: Palgrave MacMillan. 6 Arturo Santa Cruz, International Election Monitoring, Sovereignty, and The Western Hemisphere Idea: The Emergence of An International Norm (New York: Routledge, 2005a).

Both realists and liberals are quick to point out that international norms do

not have the force of law. Many constructivists nonetheless argue that norms shape

states’ perceptions of their interests and can constrain their behavior. Norm

violators incur disapproval and may face tangible costs in terms of lost foreign aid,

foreign investment and other international “goods”. Data show that states accepting

international observers receive more foreign aid than those that don’t.7 Norms are

therefore best portrayed as complementary to rather than a replacement for

conditionality.

Yet regime theory has only taken international relations a certain distance.

Globalization has challenged traditional valuations of state sovereignty even as

multiculturalism has questioned the concept of the nation-state. International

election monitoring, which subjects to international scrutiny that most sovereign

exercise of leadership selection, is particularly difficult to accommodate within a

realist framework. In the Western Hemisphere, transitions to democracy were

assisted by foreign actors, and acceptance of that international role invited Tom

Farer to conclude in 1996 that state sovereignty had diminished.8 Indeed, Arturo

Santa Cruz has argued that international election monitoring, “is one way through

which the meaning of sovereignty has gradually changed. Its effect on the

construction of sovereignty, and therefore on the identity and interests of states, is

indeed straightforward: the recognized rights of states are now explicitly delimited

7 Judith Kelley, Monitoring Democracy: When International Election Observation Works, and Why It Often Fails (Princeton: Princeton University, 2012), p. 30. 8 Tom Farer, Beyond Sovereignty: Collectively Defending Democracy in the Americas (Baltimore: The John Hopkins University Press, 1996)

by an international element.”9 Legler, Boniface and Lean, who examined democracy

promotion in the Western Hemisphere (including international election montoring)

found instead that the state is a participant in rather than a victim of transnational

politics. They concluded, “If we cannot accurately characterize contemporary

political transitions as purely, or even predominantly, domestic processes, we also

find abundant evidence that reports of the demise of sovereignty have been greatly

exaggerated.”10

In addition to itself being a norm, election monitoring is hypothesized to be a

mechanism of norm transfer for norms of democracy and transparency. A variety of

international norm transmission mechanisms are hypothesized in the literature.

The globalization hypothesis credits advances in communications and

transportation technology with aiding the spread of norms from one world region to

another. There may also be “spillover” of regulatory practices from one policy area

to a closely related policy area. Norms may be more likely to take root where

“adjacent” norms exist. For present purposes, however, the most relevant

hypothesized mechanism for norm diffusion is advocacy by principled issue-

networks. These are “groups of NGOs, IGOs and donor agencies that share values

and principled ideas, meaning notions of what is right and wrong, and establish

frequent cross-border contacts with one another to advocate around a specific

issue”.11 International election observers that have monitored elections in

9 Santa Cruz, International, 8.10 Thomas Legler, Dexter S. Boniface, and Sharon F. Lean, Promoting Democracy in The Americas (Baltimore: The John Hopkins University Press, 2007), 17.11 Kathryn Sikkink, “Human Rights, Principled Issue-Networks and Sovereignty in Latin America,” International Organization 47, no. 3 (1993): 411-441.

Nicaragua, including the OAS, United Nations (UN), European Union (EU) and The

Carter Center, may compose such a network, but the utility of election monitoring as

a norm transmission mechanism stands as a persistent claim of election observation

advocates rather than a demonstrated effect.12

Constructivists have suggested that international norms have a “life cycle”

consisting of three stages: emergence, a norm cascade, and institutionalization.13

Transnational networking by “norm entrepreneurs” is hypothesized to aid norm

development, particularly during the first phase of the norm lifecycle when they call

attention to or even create issues, contributing to the emergence of norms.14 The

term “norm entrepreneurs” has been used to describe individuals and organizations

that work toward a norm’s adoption, and they are thought to be necessary but not

sufficient for norm emergence.

Norms have both regulatory and constitutive effects, and in the latter case

can shape an entity’s identity. Here I will suggest that election monitoring was so

essential to Nicaragua’s transition to democracy, and consequently the end of its

civil war, that it may have had constitutive effects on the electoral system, with

international observation becoming an inherent element of legitimate elections. In

1990, verification by UN and OAS election observers was required under

international peace accords, and Nicaraguan electoral law would be amended to

12 Kelly, Monitoring.13 Martha Finnemore and Kathryn Sikkink, “International Norm Dynamics and Political Change,” International Organization 52, no. 4 (1998): 887-917.14 Florini, Ann. 1996. “The Evolution of International Norms.” International Studies Quarterly 40, no. 3: 363-389, pg. 375 footnote 2, attributes the term to John Mueller; Finnemore, Martha and Kathryn Sikkink. 1998. “International Norm Dynamics and Political Change.” International Organization 52, no. 4: 887-917.

anticipate observers’ presence in subsequent electoral contests. Even when the

government hesitated to invite international observers in 2011, fully three-quarters

of the Nicaraguan public favored doing so and pressed their government in that

direction.15

Checkel has observed that in addition to the impact of domestic structures,

“domestic norms shaping the preferences of agents predict the degree to which

international norms resonate and have constitutive effect”.16 Andrew Cortell and

James Davis developed a helpful typology of norm salience to gauge the extent to

which an international norm has been accepted domestically.17 “Salience is

moderate when the state’s policy agenda and institutions incorporate the norm’s

prescriptions, but institutions enabling countervailing normative claims continue to

exist,” they write. This was the case for election monitoring in Nicaragua, where

broad acceptance of election monitoring was overlayed on pre-existing political and

electoral norms that included party pacting to pre-arrange electoral outcomes.

Amitav Acharya has pursued this line of inquiry but emphasized the

reciprocal nature of norm adoption, wherein international actors purvey norms in

local contexts and local agents reshape those international norms in the process of

adopting them. Acharya employs the term “norm localization” to describe how local

actors reconstruct foreign ideas through discourse, reframing, grafting and cultural

15 Cinco, polls conducted in January and May 2011.16 Checkel, Norms, 83-114.17 ? Andrew P. Cortell and James W. Davis, “When Norms Clash: International Norms, Domestic Practices and Japan’s Internalisation of the GATT/WTO,” Review of International Studies 31, no.1 (2005): 3-25.

selection.18 That is, norms evolve in the process of being accepted, and come to

reflect local content. Norms are thus subject to substantial syncretization as the pre-

existing normative environment acts on the newly imported ideas. Might the

retrenchment of Nicaragua’s openness to international election observation be part

of a localization process through which Nicaraguan actors are adopting a norm on

their own terms?

Elsewhere Acharya has specified that norm localization is more likely to

occur where local norms are strong, and where norm-takers seek to use new norms

to enhance the legitimacy and authority of local institutions and procedures.19

Importantly for this paper, norm-takers sense of identity may affect localization.

Here it will be argued that the governing party’s socialist and nationalist ideology, a

product of the FSLN’s revolutionary origins, shapes how Sandinista leaders prefer to

engage election observation groups.

Cortell and Davis have shown that national values matter in international

norm adoption, and a specific norm may be less likely to be adopted where there is

no cultural affinity for it.20 Within the democratization literature, there is now a

strong thrust toward presenting democracy as a universal value, but as the current

Latin American debates about participatory democracy show, conceptions of

democracy differ even within world regions. This no doubt shapes citizens

18 ? Amitav Acharya, Whose Ideas Matter?: Agency and power in Asian Regionalism (Ithaca: Cornell Univeristy Press, 2009).19 ? Amitav Acharya, “How Ideas Spread: Whose Norms Matter? Norm Localization and Institutional Change in Asian Regionalism,” International Organization 58 no.2 (2004): 241, 247-248.20 Cortell and Davis, When, 3-25.

understanding of adjacent norms related to elections and election monitoring.21 A

great deal has been written about Latin American political culture, which

traditionally embodied principles that some scholars consider anathema to the

consolidation of democracy.22 Yet although culture is often slow to change, it is not

static, and the struggle between competing international and domestic norms, and

processes of norm localization, may help explain how political culture changes.

Acceptance of international election observation can therefore tell us a great

deal about democratic consolidation, especially when that is defined as the

development of a democratic political culture rather than simply party turnover in

the legislature. Where international election observation is welcomed, expected and

thriving, the prospects for democracy seem better than in countries where it is

resisted, whether or not the resistance is due to a government’s intent to carry out

fraud. Yet little scholarly analysis has been done on election monitoring, which is

most often treated merely as a policy instrument. A search for information on

election observation is more likely to turn up how-to manuals than scholarly

analysis. Nevertheless, important exceptions exist. Descriptive accounts have laid

down a historical record of the evolution of election observation.23 Reflections by

scholar-practitioners have yielded useful policy advice.24 Recent scholarship has

sought to frame election monitoring in theoretical terms and test hypotheses about

21 ? On democracy as a universal value, see Diamond, Larry. The Spirit of Democracy. New York: Times Books, 2008.22 ? See Wiarda, Howard J. and Kline, Harvey F. Latin American Politics and Development. Boulder: Westview Press, 2000.23 Eric. C, Bjornlund, Beyond Free and Fair: Monitoring Elections and Building Democracy (Washington D.C.: Woodrow Wilson Center Press, 2004), p.24 See for example Pastor; McCoy, Jennifer, Robert Pastor, Larry Garber

the conditions under which election monitoring deters fraud, increases social capital

and accountability, and helps to consolidate democracy.25

This paper adds to the body of research by examining resistance to

international election monitoring in a least likely case. Nicaragua is a “soft-shelled”

state historically dependent on the United States. Its sovereignty was honored in the

breach, and international factors were unusually important in it transition to

democracy. International election monitoring was crucial to its transition elections,

and practiced thereafter for two decades after being codified in law and broadly

embraced by the public. If the determined autocrats can reject international election

monitoring in Nicaragua, the norm may not be institutionalized anywhere and will

remain unstable with low salience. It matters whether Nicaragua’s new resistance to

international election observation is driven by authoritarian regression and is an

attempt to suborn the norm, or instead signals localization of the norm implying its

acceptance, though on terms set by the Nicaraguans.

Nicaragua’s Electoral History in Brief26

From 1934 to 1979 the Somoza family ruled Nicaragua in Latin America’s

longest-running dictatorship. Elections were held to legitimate the rule of the

25 Hyde, Susan; Kelly, Judith; Santa Cruz, Arturo; Hartyln, Jonathan and Jenifer McCoy; Lean, Sharon, 2012 Civil Society and Electoral Accountability in Latin America, New York: Palgrave MacMillan.26 As this electoral history section is meant as a background for those unfamiliar with the case, rather than a fresh contribution to the literature, large portions were taken verbatim from my chapter on “The Uncertain Evolution of Nicaragua’s Electoral System” in David Close, Salvador Marti i Puig, and Shelley A. McConnell The Sandinistas and Nicaraguan Politics since 1979, Lynne Rienner Publishers, 2011.

Somoza’s National Liberal party but were rigged with the collusion of the opposition

Conservative party to give the latter one-third of the seats in a gesture toward

pluralism. Other parties were harassed or banned. The United States had picked

Anastasio Somoza Garcia to lead the newly established National Guard in 1934

when the US Marines ended their 27 year occupation of Nicaragua, and provided

Somoza’s government and later his sons’ governments with substantial economic

and military aid, propping up a dynastic dictatorship.

In the 1960s, students critical of both the Somoza government and the

Socialist party’s ties to Moscow formed a revolutionary group, the Sandinista

National Liberation Front (FSLN), naming it after the martyred leader of a resistance

group that had conducted guerrilla-style harassment of the US Marines in the 1930s.

Although Sandino had been a Liberal, the revolutionary Sandinistas developed an

eclectic ideology that was predominantly socialist and nationalist but had threads of

Liberation Theology and liberal democratic thought. Although weak and nearly

destroyed by Somoza’s National Guard in the 1960s, they gained momentum in the

1970s after an earthquake destroyed the capital city, Managua, and the recovery

process revealed the depth of the Somoza regime’s corruption. The Sandinista

insurrection succeeded in overthrowing the Somoza dictatorship in 1979.

The FSLN established a five-member Government Junta of National

Reconstruction (JGRN) to govern while transforming itself from a political-military

movement into a vanguard party that would lead a transition to socialism. Although

other political parties were allowed to form, their adherents were sometimes

harassed and jailed. Citizens were invited to participate in politics through the mass

organizations affiliated to the FSLN that held seats in a rubber stamp legislature.27

When Ronald Reagan came to the US presidency in 1981 he authorized the

creation of a covert force, the Nicaraguan Resistance, based in Honduras and

composed of remnants from Somoza’s National Guard. Their goal was to bring down

the Sandinista government and end the socialist experiment, which the Reagan

administration labeled as a threat in the ongoing Cold War. In response, Nicaragua’s

revolutionary government grew increasingly authoritarian. By 1982, prospects for

liberal representative democracy looked decidedly grim. Historically, no

revolutionary government that had come to power via force of arms and espoused

Marxist ideology had ever held free and fair elections that put control over state

power in play.

It thus came as a surprise to many that in 1983 Nicaragua generated a

political parties law that permitted pluralist competition for control of the

government, and held elections in 1984. A major opposition coalition boycotted that

contest, which was predictably won by the FSLN and its leader Daniel Ortega.

Nonetheless participating opposition parties won roughly one-third of the seats in a

reformed legislature, the National Assembly, now composed exclusively of party

representatives. Although no professional election observation took place, non-

governmental groups from the United States and Europe who were present

concluded that the elections were a strong step in a democratic direction.

27 Nicaragua’s early revolutionary political system is discussed in John Booth, The End and the Beginning: The Nicaraguan Revolution (Boulder: Westview Press, 1985).

The revolutionary government’s crafting of the rules for party formation and

elections shaped new state institutions in the 1980s, having an impact well beyond

the electoral realm. The rules for party formation changed the basis of

representation from functional to territorial, and altered the mode of interest

intermediation from monism via mass organizations affiliated with a vanguard

party to pluralism via competing political parties. The 1984 Electoral Law changed

the basis for government legitimacy from winning the revolution to winning public

support at the polls. Nicaraguan elections were championed as the centerpiece of a

democracy that was weak in other respects. Indeed, among scholars and policy

makers alike there was a tendency toward electoralism, meaning the faith that

“merely holding elections will channel political action into peaceful contests among

elites and accord public legitimacy to the winners in these contests”.28

The United States refused to recognize the 1984 results and instead

deepened its support for the Nicaraguan Resistance, whose ranks had expanded to

include disaffected peasants alienated by the revolutionary government’s

agricultural policies and socialist agenda. Known informally as the Contras, this

force would eventually reach 16,000 and the conflict would take on dimensions of a

civil war that reflected deep ideological divisions between right-wing Liberals and

the leftist Sandinistas. By the end of the decade tens of thousands of Nicaraguans

had died in two decades of revolution and counter-revolution, and the conflicts had

substantially destroyed the economy of what remains today as the second poorest

country in Latin America. Amid the war, Nicaragua’s legislature approved a new

28 ? Terry Lynn Karl, “Electoralism” in the International Encyclopedia of Elections, Richard Rose, ed. (Washington DC: CQ Press, 2000), p. 95-96.

constitution in 1987 that had both socialist and liberal democratic elements, but

again the main opposition parties boycotted the constitution-making process and

refused to accept the resulting document as legitimate.

That same year, the presidents of the five Central American countries

negotiated the Esquipulas peace accords, which specified that if Nicaragua were to

hold competitive and honest elections by February of 1990 Honduras would deny

the Contras the use of its territory as a safe haven from which to resupply and

mount military incursions into Nicaragua. This would effectively end the

counterrevolutionary war as Nicaragua’s armed forces were clearly capable of

eliminating the Contras within Nicaraguan territory. The Esquipulas agreement thus

held out the prospect that Nicaragua’s ideologically driven conflict could be decided

through the ballot box. Then-President Daniel Ortega signed the accords, but there

was a catch: the elections would have to be certified by international observers from

the UN and OAS.

With Reagan’s term at an end and the new Bush administration looking for

an exit from the Central American quagmire, military victory through the Contras

appeared increasingly unlikely and Nicaragua’s opposition parties agreed to enter

the race. In February of 1990, elections were held in which all of Nicaragua’s

political parties participated. Roughly 250 UN election observers and 400 OAS

election observers, together with 37 Carter Center observers and thousands from

smaller groups, monitored the electoral preparations, balloting and vote count.

Much to the FSLN’s surprise the anti-revolutionary opposition coalition, the

National Opposition Union (UNO) won a resounding victory. After negotiations that

separated the military from the FSLN, the winning presidential contender, Violeta

Barrios de Chamorro took the reins of government in a peaceful transfer of power in

April of 1990. In the subsequent three years, the Contras would sign peace accords

and remaining irregular forces were pacified even as Nicaragua’s armed forces were

reduced from some 100,000 troops to just 15,000. Democracy appeared to be taking

hold for the first time in Nicaraguan history.

Observation of the 1990 election

Although the 1984 elections were observed informally by the Latin American

Studies Association, the Irish Parliament, a coalition of Danish churches and US

human rights groups, election monitoring of the 1990 contest would take place on a

far grander scale and with a thoroughness that strained sovereignty. Indeed, this

election monitoring effort was significant not only for Nicaragua but also in setting a

new standard for professional election monitoring that would forever change the

practice.

To understand why Nicaragua’s 2011 election monitoring rules must be

viewed as a radical reversal of transparency, an account of election observation in

the 1990 elections is first required. This will show that election observation was

both politically penetrative and crucial to the success of the transition to democracy,

so much so that thereafter many Nicaraguans could not imagine a legitimate

election without international observation and would demand that foreign

observers return to monitor national elections in 1996, 2001, 2006 and 2011.

Moreover, after the 1990 vote international observer agencies that had helped keep

elections on track even when the ceasefire in the civil war collapsed stepped

seamlessly into peace-making and peace-building roles. As a consequence, the

presence of election observers was viewed as a guarantee against election-related

political polarization sparking a return to armed conflict.

UN and OAS election observation in Nicaragua was foreseen in the 1987

Esquipulas Peace Accords. Whereas past observation by those organizations in

sovereign countries had been small scale and short term, in July of 1989 they each

mounted sizeable monitoring missions in Nicaragua that remained in place until

shortly after the February 1990 election. Separately, and hard on the heels of

President Carter’s denunciation of a fraud in Panama’s May 1989 election, The

Carter Center would persuade President Ortega to invite its Council of Freely-

Elected Heads of Government to observe the electoral process. Myriad smaller and

partisan groups were also invited, making Nicaragua’s 1990 vote the most observed

election on record estimated to have drawn 3,000 observers. The largest of the

election observation delegations was that of the OAS, which fielded some 400

observers, or roughly ten times the highest number it had ever deployed before. The

previous record had been set in the Dominican Republic in 1966 with 41 observers.

In the 23 years that followed, no OAS mission had involved more than a dozen

observers.29 The scale of the OAS observation of Nicaragua’s 1990 elections was

simply unprecedented. The UN previously had fielded large observer missions for

elections in trusteeship territories, but not in a sovereign country.

29 ? Sharon Lean, “External Validation and Democratic Accountability” in Thomas Legler, Dexter S. Boniface, and Sharon F. Lean, Promoting Democracy in the Americas (Baltimore: The Johns Hopkins University Press, 2007), p. 157.

Efforts had been made to observe the Chilean referendum that ended

Pinochet’s rule in 1989, and the Panama elections that followed, but most of the

election observation practices that are now routine were either invented or adopted

as standard operating procedures in Nicaragua’s 1990 elections. This included the

election authorities’ basic distinction between various classes of observer groups

that would receive corresponding levels of access and attention. In the top tier were

IGOs such as the UN and OAS that would provide an official record that could

influence the policies of other states. Second were prestigious international NGOs

that were at least nominally nonpartisan and able to field a substantial number of

observers. The Carter Center fell somewhere inbetween these, for although it was

technically in the second category it was accorded some of the privileges of the IGOs,

including access to Nicaragua’s national counting center and top level election

authorities. These privileges were offered because The Carter Center mission

leadership was drawn from the former presidents and prime ministers on the

Center’s Council of Freely-Elected Heads of Government. A third tier included

partisan groups invited at the request of the political parties, and a fourth contained

myriad civil society organizations that for one reason or another applied to obtain

observer credentials. Apart from these were journalists. In later elections, some

embassies in the local diplomatic corps would also make an effort to observe.

The UN and OAS clarified their institutional mandates via negotiation of a

Memorandum of Understanding (MOU) with the government. These agreements

established the extent of their access to electoral procedures, locations and

information, as well as diplomatic treatment for their observers. By contrast, The

Carter Center would operate under a loosely phrased written invitation to observe

issued by the Nicaraguan election authorities and verbally approved by the

opposition parties. In this manner The Carter Center retained more flexibility for

mediation of electoral disputes than bureaucratic IGOs could hope for. It was not

guaranteed the same level of cooperation from election authorities, but due to the

relatively positive record President Carter’s administration had set when the FSLN

first came to power in 1979, Nicaragua’s Supreme Electoral Council (CSE) was

forthcoming in providing information.

The OAS and eventually the UN opened offices in the interior of the country

and assigned departmental coordinators to organize a nationwide monitoring

process in a pattern that would become routine in succeeding elections.30 There and

in Managua they would observe the registration of voters, registration of parties and

candidates, issuance of voter identification, verification of polling locations, ballot

design, packaging of materials, campaign rallies and every other step in electoral

preparations. Analysts assessed the decisions made by the CSE to determine

whether there was political bias (and found none) after the election authorities

made the records of their meetings available. The UN set up a system to receive

complaints from citizens so that it could verify government action to resolve them.

The OAS planned a quick count, which was then a new technique for accurately

30 Much of this material was documented in the reports of the UN mission to Verify the Elections in Nicaragua (ONUVEN), of which this author was a member. In addition, comments on the 1996, 2001, 2006 and 2011 elections rely on my participant observation as an election observer or study mission consultant with The Carter Center.

projecting an electoral result based on a small sample of the tabulation records, and

the UN cooperated in collecting data for it.

Given that the country was extremely underdeveloped and its limited

infrastructure had been damaged by two decades of revolution and

counterrevolutionary war, a monumental effort was needed to overcome logistical

obstacles. The UN erected a communications tower so that its observers could relay

information to the isolated areas of the interior, and imported satellite telephones

for its observer teams on the remote Atlantic Coast. It set up a media monitoring

facility in which technicians could measure the advertising time used by each party

on each television and radio station to assure these complied with legal provisions.

Logistics experts traveled every kilometer of roadway to assess whether vehicles

could reach the polling places. Time and motion studies were conducted to

determine whether the polling sites could accommodate the maximum 400 voters

assigned to them during the established voting hours.

Many of these activities required the consent and indeed facilitation of the

government and election authorities. The Supreme Electoral Council acted with

transparency, providing the UN, OAS and The Carter Center with copies of its

internal decisions, data on registration numbers, information about the location of

polling places and credentials that would enable observers to enter the polling

places and counting centers to conduct their work. Police and armed forces

personnel were under orders not to obstruct credentialed international observers.

Though less forthright, the executive branch had signed MOUs with the

intergovernmental organizations, cooperated with the rapid importation of vehicles

and other equipment necessary for their work, and created special visa provisions

to permit observers to stay and work in Nicaragua. That is, despite the massive scale

of election observation operations and intrusive thoroughness of the myriad

assessment activities, the Sandinista government and its leader Daniel Ortega

demonstrated a high level of electoral transparency and openness to international

electoral scrutiny.

As problems arose, election observer missions sought to resolve them. The

UN and OAS would quietly call the problems to the attention of electoral authorities

and follow up with inquiries about what had been done. The UN also helped

persuade the opposition to accept that the elections could be held under the existing

constitution, prevented over-reaction by opposition parties when the government

ended its unilateral ceasefire with the Contras. The UN also helped convince the

Supreme Electoral Council to reopen registration so that former Contra soldiers

who had recently given up arms could register to vote. Unconstrained by a set

mandate, The Carter Center was more activist and public in tone, overtly engaging in

election mediation. President Carter directly negotiated with political parties and

the government to reach agreement on the return of exiled Miskito Indian leaders, a

non-violence accord and new rules for police conduct at election rallies, release of

opposition party funds that had been blocked at the banks, and release of vehicles

and other supplies for opposition parties that had been held up in customs.31

31 Carter Center (1990). Observing Nicaragua’s Elections, 1989-1990. Atlanta, Georgia.

Despite the war, election observers kept the election process from being derailed by

the mutual suspicions between the FSLN and opposing UNO coalition.32

The UN, OAS and Carter Center observer missions would each develop a

survey form that their observers would fill out at polling stations, thus creating a

systematic monitoring record. The forms ranged in complexity, and observers were

trained in their use. The questions mirrored the electoral law and related

regulations, and were designed to assess whether the election complied with

established procedures as well as broader international standards for ballot secrecy

and a peaceable electoral climate. They inquired about whether materials had

arrived, polling places had opened on time, voters were instructed in a politically

neutral manner on how to cast a ballot, and political party agents were present to

deter fraud, among other questions. In the end, the observers would give

Nicaragua’s 1990 election high marks for procedural accuracy and neutrality on

voting day, finding few problems that could have affected the outcome of the vote.

Perhaps more importantly, they established the practice of systematic collection of

information as the basis for objective reporting on the quality of the election, a

practice that spread and is now standard.

At the close of polls, observers were present for the counting of the votes, not

only in the polling places but at the departmental and national levels where the tally

sheets were transmitted. Election authorities also provided full access for these

three observer teams at the regional and national counting centers, where tally

32 McConnell, Shelley A. (2000) “ONUVEN: Electoral Observation as Conflict Resolution,” in Tommie Sue Montgomery, editor Peacemaking and Democratization in the Western Hemisphere North-South Center Press.

sheets were totalled to determine the winner. Athough they were not permitted to

observe the meetings at which challenges were resolved, the challenges were too

few in number to have affected the outcome of the election.

Due to the quick count conducted jointly by the UN and OAS, election

observers were aware that the FSLN had lost the election several hours before the

government and political parties knew of it. Leaders of the UN and Carter Center

missions visited Daniel Ortega to learn what his intentions were and urge him to

concede.33 The private conversation between Ortega and former US President Jimmy

Carter, who had himself lost a run for a second term only to emerge as a world

statesman, was crucial in helping to persuade Ortega to accept his loss. In a

watershed moment, the transition to socialism came to an end, and Nicaragua would

begin a new political experiment with democracy.

The election observation of the 1990 elections was credited with helping

Nicaragua make a transition to democracy, and was likely a necessary determinant

of that outcome. Although the sheer scale of observation was in some sense

intrusive, criticism was muted given that the main observer groups had been invited

by the government and gone about their work in a non-partisan and professional

fashion. The observer groups compiled a record of their techniques and findings,

publishing final reports in the months following the vote, and many practices

established in Nicaragua were immediately replicated by the UN election

observation mission in Haiti. The 1990 elections therefore substantially shaped

33 Pastor, Robert A. (1990). “The Making of a Free Election.” Journal of Democracy 1 (3): 13-25.

standard operating procedures and contributed to the emergence of an

international election observation norm.

The fact that the UN, OAS and The Carter Center were nonpartisan did not

mean that they had no political effect. It was understood that the presence of the

observers increased election turnout, and that the increased turnout probably

favored anti-Sandinista parties. While the FSLN was a militant party with deep

organizational resources for mobilizing its supporters to register and vote,

opposition parties were far less organized and unable to do so. Some regime

opponents may also have feared that their ballots would not be secret and that they

would suffer repurcussions for voting against the governing party. The observer

missions stressed that the vote was secret and each vote would count, and perhaps

as a consequence Nicaraguans dared to come to the polls and vote for change. This

observers’ impact on turnout among opposition voters was foreseeable, but the

governing party was persuaded that it had high enough levels of support to win in

any case. In the event, they lost by a substantial margin that no doubt exceeded the

impact of any increased turnout that observation may have caused.

Changed Rules and Practices in 2011

National elections in 1996 and 2001 were won by Liberals who first gathered in an

alliance and later combined as the Constitutionalist Liberal Party (PLC). The FSLN

remained in second place, and Daniel Ortega retained leadership of the party. In

2006, the Liberals split and Ortega won the presidency with a plurality. The FSLN

did not win a majority in the legislature but was able to obtain periodic cooperation

from the PLC in passing legislation. It could not, however, persuade the PLC to help

pass a constitutional reform that would allow Ortega to run for a third term, so

instead Ortega appealed to the Supreme Court. In a process fraught with problems

the Court decided that the constitutional prohibition against re-election could not be

applied to Ortega, making him eligible for re-election in 2011 and indeed in

perpetuity. The 2009 decision, which followed widespread fraud in the 2008

municipal races, set Nicaragua firmly on course toward electoral authoritarianism.

From the Sandinista perspective the problem was that Ortega might still lose in

2011, as he had in 1990 despite polls suggesting he had the lead. Once again, the

Nicaragua public demanded that international observers be present in the hope that

they could deter fraud. International donor countries made clear that they too

would question the quality of the 2011 election if it went unobserved.

This was the context in which Nicaragua would fundamentally alter its

election observation regulations and its treatment of election observation missions.

The open embrasure of election observers in 1990, wherein the Supreme Electoral

Council operated with transparency, stands in sharp contrast to the attitude toward

election observation displayed by the government in the 2011 general election. The

contrast is all the more apt because in 2011, as in 1990, the FSLN controlled the

executive branch and dominate the Supreme Electoral Council, the key institutions

with which international observers engage. It was by no means inevitable that the

terms for election observation would be so poor.

Nicaragua did invite election observers to the November 2011 contest, but

very late and on terms that sustained uncertainty about their welcome. Whereas in

past elections observation groups had received clear invitations eight to ten months

in advance of the vote, and set up their offices in Managua three to five months in

advance, in 2011 the government met with observer agencies but gave no clear

indication of its intentions and issued no invitations. The Supreme Electoral Council

delayed publication of the regulations for election observation until August 16 of

2011, and without those rules in hand groups such as the OAS, EU and The Carter

Center that acknowledged the need for observation were nonetheless hard put to

commit to mounting a mission. By the time the regulations were published,

registration of parties, candidates and voters, as well as verification of polling site

assignments, was already concluded. That is, much of what professional election

monitoring agencies usually observed was already over.

Once the regulations were published, it became clear that the Nicaraguan

government had radically altered the terms of engagement in ways that

substantially reduced the capacity of observers to mount an effective monitoring

mission even for those elements of the process that had not yet occurred. Much of

the text was poorly written, and key elements were internally contradictory, leaving

substantial ambiguity in the text. The partisan nature of the election authorities

created concern among observer groups that those gray areas would be intepreted

in the most restrictive fashion possible.

The FSLN had harbored doubts about election observation ever since their

traumatic loss in 1990. They were not entirely alone in this; Liberals were

concerned that The Carter Center might be too sympathetic to the Sandinistas. But

the Sandinistas’ doubts ran deeper, especially with respect to center-right

observation groups based in Washington; they had refused to receive the Center for

Democracy after intercepting a derogatory cell phone transmission in 1996. In

2001, cool relations with the International Republican Institute (IRI) resulted in the

FSLN calling for removal of that group when it was found to be training party

pollwatchers with an outdated manual. Yet Sandinista concerns were most seriously

aggravated during the 1996 election when the CSE, then dominated by small parties,

dismissed the FSLN’s claim that the elections had been fraudulent and, after a

partial recount, concluded that Ortega had not won sufficient votes to merit a run-

off election against the Liberal first place finisher Arnoldo Aleman. At the Third

International Encounter for Direct Democracy held in July of 2006 to celebrate the

27th anniversary of the Sandinista revolution, and against a backdrop of the disputed

close Mexican election, Ortega recalled that the 1996 election had been

“scandalously fraudulent, irregular, corrupt and we denounced it, but our

denunciation came to nothing because it was not echoed by the observers.”34

Two months later, in September of 2006, Ortega directly accused the OAS of

planning to delegitimate the elections to thwart his expected victory. “With all due

respect that many members of the OAS and Carter Center observation missions

deserve, we have said that we do not believe in observers, we believe in political

party pollwatchers to defend the vote,” Ortega said. He continued, “There are

observers who are totally interventionist, disrespectful and that exist simply to

34 ? Ary Pantoja, “Daniel Ortega cuestiona observacion electoral,” El Nuevo Diario, July 19, 2006. http://impreso.elnuevodiario.com.ni accessed May 26, 2013.

facilitate or create conditions so that the candidates of capital, of neoliberalism will

win and avoid a victory by a force like the Sandinista Front.”35 Although Ortega

continued to meet with international observers, and welcomed President Carter’s

acknowledgement of his eventual victory (and call to say as much to US Secretary of

State Condoleeza Rice), his administration would later publicly reject The Carter

Center’s election report because it contained criticism of some aspects of election

administration and the composition of the CSE.

The FSLN won control of the presidency 2006, though not the legislature, and

together with Sandinista dominance of the electoral branch this created an

opportunity to translate such anti-observation sentiments into policy. Resistance to

observation began in earnest with the 2008 municipal elections, to which the

government declined to invite established international observers or accredit

credible domestic observer groups. Opposition charges of widespread acts of fraud

marred those elections, and in their wake European and US donor countries

conditioned aid on improvements in the electoral process.

Instead the Nicaraguan government began to institutionalize new terms for

election observation. The CSE was empowered by Art. 10, paragraph 8 of the

Electoral Law to “Regulate the acreditation and corresponding participation of

observers of the electoral process,” and the Electoral Calendar established dates for

publication of such regulations. The election observation regulations for the Atlantic

Coast regional elections held in March 2010 were significantly different from the

rules published for the 2006 national election and the 2008 municipal election.

35 ? “Ortega: ‘OEA planea eslegitimar eleccions,’” El Nuevo Diario, September 12, 2006. http://impreso.elnuevodiario.com.ni accessed May 26, 2013.

Article 5 of the 2010 regulations stated that, “Any person [or organization] that has

stated their partiality, opinion and/or judgment against the electoral authorities or

the electoral process” could not be accredited. Since credible domestic and

international monitoring groups had criticized some elements of the 2006 election

administration and called for creation of a non-partisan election authority, this

language suggested the CSE did not intend to accredit them. Moreover, the

regulations said that election observers were prohibited from “issuing any

expression of offense, defamation, or slander against state institutions, the electoral

authorities, political organizations or candidates,” a provision that might permit the

CSE to withdraw the invitation of any agency that was critical of their work.36

The discourse of government leaders in respect to election monitoring also

changed. In August of 2010 a high level Sandinista official in the electoral branch let

slip that the CSE did not intend to invite observers to the 2011 national elections.

However, the president of the CSE announced that it would issue regulations for

election “acompaniment” if it so chose, not as an obligation. The director of

Nicaragua’s best-established domestic election observer group, Ethics and

Transparency, made the case that election observation had achieved the status of

customary law (una ley consuetudinaria), but the argument found no traction.37

The CSE averred that only President Ortega could decide which international

observer groups to invite. The following year that approach gained legal footing in

the regulations for election observation published by the CSE in August 2011.

36 Government of Nicaragua, Supreme Electoral Council, Regulations for Observation of the Atlantic Coast Regional Elections, issued January 19, 2010.37 ? Eduardo Cruz, “Fobia a la observacion electoral,” La Prensa, June 5, 2011. http://m.laprensa.com.ni Accessed May 26, 2013.

International organizations interested in observing would now need to apply to the

foreign ministry rather than being invited by either the foreign ministry (as had

been the case for IGOs) or election authorities (as had been the case for

international NGOs). This change was not so much about the difference between

being invited and applying to observe; in practice, election observation groups had

long been accustomed to visiting countries in advance of elections to sound out

election authorities about whether an invitation might be forthcoming. Rather, the

change concerned the channeling of all international observation activity through

the foreign ministry. Whereas election authorities were at least putatively neutral,

the foreign ministry was an instrument of the governing party. By 2011, both were

controlled by the FSLN, but in principle this shift politicized the invitation process

for INGOs.

In 2010 the CSE and government officials began to refer not to election

observation but rather to “accompaniment”, a term that in the discourse of

international election monitoring implied a much reduced role and which conflicted

with Nicaragua’s electoral law, which referred to election “observers”. Election

observers were expected to conduct systematic surveys and adhere to professional

standards in order to provide an objective determination about the quality of the

electoral process, whereas accompaniment implied only a loose presence that was

generally supportive of the process but which need not be autonomous and

nonpartisan nor could it result in public reflections that might be critical of the

government. The new regulations published by the CSE on August 16, 2011 would

codify that changed discourse, referring to electoral accompaniment rather than

election observation.

The reason for this reduction of the role for international election observers

is debated. Regime opponents told the press they suspected that the governing

party was plotting to hold an election that could not withstand scrutiny. At the same

time, President Ortega’s discourse centered on nationalism, implying that the rules

had been changed to protect Nicaraguan sovereignty. “If they want to accompany us

they should do so, but we don’t want controllers,” President Ortega said in his state

of the union speech in January 2011.38 He went on to recall the 1928 elections,

supervised by occupying US Marines and seen by some scholars as the cleanest

Nicaragua held in that period. “We are grown up now. We aren’t going to allow a

repetition of the history of the elections when Nicaragua was invaded and when

Yankee troops came to organize the electoral authorities,” Ortega said.

Addressing the plenary session of the Sao Paulo Forum four months later,

President Ortega stated even more clearly that he associated international election

observation with foreign intervention, but not only by the United States. “Here in

this region and in particular in Nicaragua, the Europeans, the Americans, intercede

and they do it through their representatives, among whom in Nicaragua you have to

list the interventionist forces of election observers,” Ortega told the Forum

participants.39

38 ? “Ortega Cierra Puerta a Observadores en Comicios,” La Nacion, January 12, 2011. http://www.nacion.com Accessed May 24, 2013.39 ? Lucydalia C. Baca, “Ortega Dice Que Observacion Es “Intervencion,”” La Prensa, May 20, 2011. http://www.laprensa.com.ni Accessed May 26, 2011.

Such statements permit reflection on a second shift in the terminology of the

2011 regulations for election observation. Article 2 of the new regulations specified

that personnel from invited international NGOs would be termed Visiting

Foreigners, and their purpose was to participate in accompaniment. The term

Visiting Foreigners had first been used in place of International Observers in Mexico,

where nationalists sought to dispell the impression that foreigners could place their

elections under a spotlight. The change in terminology used in Nicaragua might also

be reflective of the FSLN’s core ideology of nationalism, and Ortega’s sentiment that

election observation was a form of foreign intervention. What was puzzling in this

regard was the disappearance from the text of stipulations that election observation

be apolitical, impartial, objective, respect sovereignty and not interfere with or

attempt to substitute for the Supreme Electoral Council. It was as if by designating

that the purpose of Foreign Visitors was to participate in accompaniment, not

observation, any potential for them to violate Nicaraguan sovereignty had been

erased and the language protecting against such intervention was now moot.

Aside from these conceptual changes, several of the 2011 regulation

provisions posed logistical obstacles to organization of observation missions. Article

17 said that applications for accreditation of accompaniment organizations would

need to be received by September 15, a scant month after the publication of the

regulation, although in a separate clause it indicated September 30 was the relevant

date. Although IGOs might be able to mobilize pledges from their member states in

rapid order, and draw upon existing personnel to conduct the mission, NGOs such as

The Carter Center could not obtain grants and recruit personnel on such a tight

schedule. Moreover, the election authorities indicated they could respond to the s by

October 15, but elsewhere said that applications might be granted as late as

November 2, four days prior to the election. This timetable placed NGOs in the

untenable position of seeking funding and setting up their offices without a clear

invitation. Worse, if potential funders conditioned disbursement of their monies on

approval of the application, the election authorities would in effect be able to delay

the establishment of the mission until it became nothing more than an election day

presence.

Some elements of the 2011 regulations appeared to restrict election

observers in ways that contradicted the spirit and sometimes the letter of the

Declaration of Principles for International Election Observers, announced at the

United Nations in 2005 after extensive collaborative drafting by all the major

international election observation agencies, including the OAS, EU and The Carter

Center. These included:

(Art. 10) The Supreme Electoral Council would determine the number of

observers that organizations could bring.

(Art. 13) The Supreme Electoral Council would determine a calendar on

which accompaniment activities could be implemented.

(Art. 20) The Supreme Electoral Council would determine the routes along

which both domestic and international observers could travel.

(Art. 21) After having finished their designated routes, accompaniment

missions would communicate their findings in writing to the Supreme

Electoral Council. This seemed to contradict past practice of communicating

whenever necessary and orally as well as in writing, and the clause could be

used to restrict dissemination of findings to the press and Nicaraguan people.

(Art. 22) International accompaniment organizations would be required to

provide a draft copy of any final report to the Foreign Ministry, and reach

consensus with the election authorities concerning its publication.

The tone and content of the regulations produced consternation among

international observers as they sought to determine whether and how they could

credibly observe the elections under such conditions. Three days later, the

Nicaraguan government addressed the concerns that had been voiced by The Carter

Center and (behind closed doors) other international observer groups, and sought

to persuade observers to come, though without changing the stated terms and in

oratory that was none too reassuring. In a nationally televised speech opening the

election capaign, President Ortega specifically addressed concerns about limitations

on where observers might travel, and the need to detail those routes in advance, as

well as elements in the regulation that seemed to imply observers should

communicate in writing with the CSE rather than speaking to the Nicaraguan people

through the media. “Here we are not going to expel anyone for coming to scream

and shout four or five times, for coming to slander,” Ortega said. “We will not expel

them, they will be left wishing we would.” The president again stated that it was

Nicaraguans who would practice oversight on the elections, though observers, “can

say what they want.”40

When making the statement, President Ortega was flanked by the heads of

the legislature, Supreme Court, Supreme Electoral Council, armed forces and the

police, signalling that the state as a whole subscribed to his reading of the

regulations. Still, from a legal standpoint the CSE and not the president of the

republic was empowered to establish regulations for election observation, and these

verbal reassurances made to the press could hardly be expected to trump the letter

of the law if a conflict emerged between the government and international

observers during the process. In subsequent days the CSE would again reassure the

press that the regulation implied no limitations on observation routes or free

speech, and as such there was no need to re-issue the regulation.41

President Ortega specifically addressed The Carter Center, saying it “could

come here as it has always done, without limitations.” Behind the scenes, the

government was negotiating MOUs with the EU and OAS that would be the only

relevant terms of reference for their missions, effectively superceeding the

regulations. The government had hinted it might be willing to do the same for The

Carter Center, though that organization had never before signed an MOU in order to

observe elections in Nicaragua. Although a principled argument could be made for

multinational organizations to do so, the prospect of letting the regulation stand

40 ? Moisés Martínes, “Ortega Da “Visto Bueno” A Observacion Electoral Nacional y Extranjera,” La Prensa, August 19, 2011. http://www.laprensa.com.ni Accessed May 26, 2013.41 ? Gloria Picon and Lucydalia Baca, “Rivas Insiste En Observacion A Su Manera,” La Prensa, August 26, 2011. http://www.laprensa.com.ni Accessed May 26, 2011.

while agreeing behind closed doors that it would not apply to a civil society

organization was odd, and suggested privilege that might have increased existing

criticism that Carter was sympathetic to Ortega and the FSLN. By suggesting that the

regulations did not apply to The Carter Center, an MOU also could undercut the rule

of law, a central tenet of democratic governance , which The Carter Center endorsed.

Moreover, any such accord might be read as abandoning the domestic observer

groups to their fate by endorsing the idea that international NGOs merited more

secure access to the process than Nicaraguan observer groups.

Instead of negotiating an MOU, in September The Carter Center issued a

press statement saying that it could observe under the conditions that had applied

in the past, with a suggestion that the CSE replace the 2011 regulations with ones

that accurately reflected the absence of limitations that Ortega had claimed as the

correct interpretation of the text. This echoed the demands made by civil society

groups in August, as well as the leading business association, which had been

rejected by the CSE. The government replied via private letter to make it clear that

the regulations would not change.42

Given the late publication of the regulations, logistical challenges it posed,

and apparent violation of Principles, The Carter Center would decide not to apply

42 Ministerio Publico de Nicaragua: Fiscalia Especifica Electoral. Carta Contestacion Fiscal Electoral, directed to Jennifer McCoy, Director of the Americas Program, The Carter Center, September 12, 2011.

for observer credentials.43 Instead it sent a small study team to learn what they

could from well-informed Nicaraguans, and make a record of what occurred.44

The EU and OAS each negotiated a memorandum of understanding, as has

been their custom, through which the Nicaraguan government assured them of

conditions adequate to monitor elections. Nonetheless, due to the lateness of the

government’s publication of regulations for observation, these groups were unable

to verify the quality of the election process as a whole since critical stages

(registration of parties and candidates, verification of the voter role, voter

registration, the first month of campaigning) occurred before their missions were

established.

The Nicaraguan government’s treatment of the OAS observers lacked the

courteous tone of prior elections. An OAS observer was accused of a crime for which

there was no evidence, and had to be hustled out of the country. The mission leader

was blocked from entering the election headquarters when he went to express

concern about serious deficiencies in the election process. The OAS reported on

election day that the election authorities had obstructed its observers’ ability to

carry out their functions. Ten of the 50 OAS observers fielded were blocked from

entering and observing the selected polling places for the morning hours. This

meant they were unable to verify whether the ballot boxes were empty at the

moment they were sealed. No previous Nicaraguan election had seen anything close

43 Carter Center Statement concerning election observation, published in Nicaraguan newspapers September 9, 2011.44 The text here summarizing the quality of the 2011 elections process was taken verbatim from The Carter Center’s study team report, for which I was the primary author. See www.CarterCenter.org.

to such widespread hindrance of international observation. Although the EU fared

better, the second statement of the EU observer mission on November 17 asserted

that its personnel, along with poll-watchers of the political parties, had been

prevented from effectively observing the summation of the vote tallies in the

municipal counting centers subsequent to election day.45

Credible domestic and international observers nonetheless found serious

irregularities and were unable to verify the election results.46 The Carter Center

found it particularly telling that many of the problems stemmed from the election

authorities rather than being remedied by them. The most important problems in

election preparation were related to the voters list (padrón) and voter identity

document (cédula). Despite President Ortega’s insistence that the integrity of the

election depended on party pollwatchers, substantial numbers of opposition

political party agents were not issues credentials with which to monitor at the polls.

Some of the safeguards traditionally used to prevent fraud were skipped.

Aggregious problems with the vote count also emerged. In a departure from past

practice, election authorities reported totals by voting center rather by ballot box

making it impossible for opposition parties to verify that the tally sheets had been

correctly entered into the national count. The period established by law for filing

complaints was abruptly cut short by premature announcement of the results.

45 See the mission reports filed by the EU and OAS. Organization of American States (2011). OAS 2011 Observation Report Summary, www.oas.org and European Union. (2011). Nicaragua: Final Report on the General Elections and PARLACEN Elections 2011 http://www.eueom.eu.46 Carter Center (2012). The November 2011 Elections in Nicaragua: Study Mission Report. Atlanta, Georgia. www.CarterCenter.org.

Under Nicaraguan law the decisions of the Supreme Electoral Council on material

matters cannot be appealed, but none of the opposition parties accepted the results.

Reading Nicaragua’s New Stance

In 2011, Nicaragua changed its regulations and its attitude toward

international election monitoring. This came as a surprise given Nicaragua’s twenty

year history of international observation, beginning with the massive and thorough

observation by 3,000 observers in the 1990 transition elections. Surely if the

international observation norm were to take root anywhere it would be here;

conversely, if the international election observation norm cannot constrain

Nicaragua after 20 years of repeated observation in what has been a highly

dependent state then the norm is unlikely to matter anywhere.

It is too early to know whether the 2011 change is permanent. The

Organization of American States was invited and did send a small contingent of

observers to the 2012 municipal elections, but under the rubric of “accompaniment”

and with reduced access. Conditions for future national elections are unknown.

Nonetheless, we may be able to draw some tentative conclusions about why

Nicaragua opted to change the terms of international election observation in 2011,

and what that signifies.

As a first pass at the question, the reversal of openness toward international

election monitoring can be seen as part of a broader regression toward electoral

authoritarianism, as evidence by pacted political institutions, declining rule of law,

and erosion of free, fair and honest elections. However, this does not help us sort out

cause and effect; not doubt there is a reinforcing relationship such that being

authoritarian made Nicaragua reduce electoral accountability and reductions in

election accountability made it more authoritarian. Yet if this were simply a matter

of authoritarianism, why not just refrain entirely from issuing invitations to credible

international election observers?

One answer, that Nicaragua might have wanted to retain foreign aid by

complying with international expectations in cosmetic ways, is not satisfactory. That

ship had sailed. After fraud in the 2008 municipal elections and a repetition of key

problems in the 2010 Atlantic Coast regional elections, most European donors had

already closed up shop, the United States had made substantial cuts and Nicaragua

had switched its aid dependency to Venezuela, Russia and Iran whose money came

without electoral strings.

Alternatively it may be that the government was hoping that with a narrow

window in which to observe and a reduced level of cooperation from election

authorities, they could get away with fraud even in the presence of observers and

thereby gain legitimacy for a fraudulent contest. If so, that calculation was at least

partially mistaken. Serious international observers had long since abandoned a

simple thumbs up/thumbs down approach to whether elections “reflect the will of

the people” and now provide a more complex assessment. Certainly the observation

reports on the 2011 national election documented an array of serious problems. On

the other hand, the consequences to Nicaragua for poor elections in 2011 were few.

Ortega’s government was recognized.

A third way to think about these events supposes that international election

monitoring is an established norm in Nicaragua that has high levels of genuine

support among Nicaraguans, so much so that any politician who bans it outright

might pay a price at the polls. In support of this interpretation we find the CID-

Gallup polling data that in January of 2011 showed 72% and in May 74% of

Nicaraguans disagreed with Daniel Ortega impeding international observation.

However, the same polls show that his support remained the highest among the

candidates and at levels that were historically typical for him (about 38 percent), so

he had not at that point lost support due to his stance on observation. One reason

may be that the country’s history of US intervention by the Marines, in favor of the

Somoza dictatorship, and as the sponsor of the Contra war makes Nicaraguans

deeply sensitive to interference in their internal affairs. This is all the more true for

Sandinistas, whose revolutionary ideology was nationalist as well as socialist, and

whose self-conception is as a force defending Nicaragua from foreign intervention.

The election observation norm can be effectively criticized as conflcting with older

norms of sovereignty and non-intervention that loom large in the Sandinista

ideology and lived experience.

Speaking to this is the telling consistency in Ortega’s comments about

international observeration as a tool of donor foreign policy and a form of foreign

intervention. He seemed to support election observation in 1990, primarily to bring

an end to the US backed Contra war. Yet his speeches suggest he holds a grudge

against observers for failing to back his bid for a run-off election in 1996 when

mishandling of ballots forced a recount and annulment of a substantial number of

votes. The observers could not to intervene in the Supreme Electoral Council’s

handling of challenges to the vote, nor did the FSLN make a persuasive case that

there had been systematic bias in favor of or against a given party, but that is

neither here nor there; Ortega emerged with the belief that his party’s complaints

did not get a fair hearing because international observers did not echo them back to

the election authorities.

By 2001, Ortega had entered into a political pact that sharply reduced the

number of electoral competitors and assured that his party would share control of

important state institutions, and he accepted his loss at the polls. In 2006, however,

when polls once showed him leading, he expressed doubts about international

observers and particularly the OAS, accusing them of planning to delegitimize his

impending victory. After winning, his government began to retrench on election

observation, disallowing it in 2008 and inventing regulations that reduced

facilitation of and even threatened to restrain observation in 2010 and 2011.

President Ortega continued to equate election observation with intervention, and

expanded that analysis to include Europeans.

The suggestion here is that the Sandinistas have fitted international election

observation into a pre-existing worldview of Nicaraguan sovereignty under siege.

The seeds of that interpretation were planted long ago, but have germinated now

that the FSLN again controls the government and is positioned to reframe the

international election observation norm in a process of localization. This is less

about FSLN hostility to international observation, which would have produced

outright rejection of it, than about FSLN awareness of power politics and the way

that states engage transnational politics. It is a signal that Nicaragua no longer

intends to be a passive norm-taker in the international community but instead seeks

to itself shape norms of democracy based not only on persistent traditions of

pacting but an alternative conception of what constitutes democracy and

Nicaragua’s appropriate place within Latin America’s New Left politics.

The analysis may rest here for the moment, but the case also shows us that

the literature on norm adoption leaves a crucial question unanswered: At what

point does localization of a norm alter it so much that the norm loses function, no

longer matching the international pattern that was its genesis or constraining state

behavior in the expected direction? When can we say that the norm has been

adapted to the point of being suborned? It is too early to know in Nicaragua,

particularly as the 2012 municipal elections showed some improvements in election

administration, but the room for localization is clearly finite, and at some point must

be understood as rejection of the norm.

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