Prohibiting Indefinite Reelection, a Milestone in Inter-American Law
The ruling challenging Nicaragua’s allowance of indefinite reelection sets a precedent for the defense of democracy in the region.
By Jaime Aparecio and Ruben M. Perina* (Confidencial)
HAVANA TiMES – The recent ruling of the Inter-American Court of Human Rights (IACHR) in the case of “Gadea vs. Nicaragua” challenged the limitless repetition of presidential terms. This verdict represents a historic milestone in inter-American law and sets a precedent of obligatory application on the part of the nations that are part of the OAS American Convention on Human Rights. Nonetheless, the ruling has nearly gone unnoticed in the hemisphere’s media outlets.
It now falls to the IACHR to apply and interpret the Convention for the effective protection of political rights in the Americas, among them the right to “vote and be elected in genuine periodic elections” [article 23]. The Court ruling established the Nicaraguan government’s responsibility for having violated the political rights of candidate Fabio Gadea, by having ignored the Constitutional limitation on presidential mandates and allowed long-time President Daniel Ortega to run again in the 2011 election. According to the IACHR decision, Nicaragua’s Supreme Court and Supreme Electoral Council interpreted the stated human rights principles in an arbitrary, abusive, and biased manner to justify President Ortega’s perpetuation in power, which has continued today.
The verdict sets a key precedent in the defense of democracy in the Americas. It condemns the Nicaraguan government for the “lack of integrity” of the 2011 electoral process, after observing that those elections were held in a context of irregularities, including the abusive use of State resources, manipulation and partiality from the judicial and electoral magistrates, the outlawing of opposition candidates, and the harassment of independent media.
The Court concluded that the “lack of integrity generated an advantage in Ortega’s favor” and violated “Mr. Gadea’s right and opportunity to be elected through an authentic [fair and free] election.” All of this was in violation of the fundamental principles of electoral integrity, impartiality, and separation of powers that characterizes a genuinely democratic election.
The sentence itself represents a crucial advance in the protection of political rights in the hemisphere, emphasizing the interdependence of such rights with democracy, and the importance of their fulfillment to guarantee the full realization of such rights. In that sense, the verdict’s mention of the Inter-American Democratic Charter stands out as an indispensable resource for interpreting the States’ responsibility for the protection of political rights, as well as for evaluating the conduct of the member States in terms of their defense and promotion of democracy.
The countries belonging to the OAS established in that Charter that “the peoples of the Americas have the right to democracy, and their governments have an obligation to defend and promote it.” The member states also agreed that there are “essential elements for representative democracy,” among them respect for human rights and fundamental freedoms, the existence of the Rule of Law, the celebration of periodic free and fair elections, political pluralism, judicial independence, the existence of separate, independent powers, and the integrity of public office.
The sentence marks a key judicial precedent against indefinite presidential reelection, by reiterating the Court’s advisory opinion 28/21, issued on June 7, 2021, which determined that [indefinite election] was not an autonomous right recognized in international human rights law. More specifically, the current ruling is a definitive and indisputable legal blow against reelection-ism, and the argument Latin American autocrats on the left or right have advanced that prohibiting indefinite reelection violates the human rights of the person who desires to be reelected in that way.
Apart from that, it now becomes an additional legal instrument which citizens of the Americas can recur to for defending their rights and combatting any autocrats who claim to be using democratic means to remain in power eternally.
Indefinite reelection is the favored method of those pseudo-democracy advocates turned autocrats to cement themselves into eternal power. It’s part of their plan for installing and perpetuating a hegemonic regime through the reelection of the leader of the moment, or, alternately, the election of their family members (“dynasties”), or allies (“succession-ism”).
After winning democratic elections with legislative majorities, such aspiring autocrats repeal the laws prohibiting continuous reelection, manipulate the Judicial Powers by appointing or “convincing” magistrates to ratify the repeal of term limits, then do the same with the electoral authorities, to legitimize unlimited reelection.
The formula includes taking unfair advantage [of power and resources], as well as demagoguery and electoral inhibition of other candidates. With electoral authorities now in line with their hegemonic designs, the regime abuses the government resources in their electoral campaign – by announcing or inaugurating public works projects; promising jobs, social benefits and price controls; appealing to popular sovereignty; and cultivating patronage. They also construct a State marked by dependence and political hegemony, and outlaw, persecute or exile opposing politicians and media outlets. The interdependence of powers and the Rule of Law vanish. It practically amounts to a veiled, slow-moving coup.
In addition to Ortega, Latin American autocrats like Hugo Chavez and Nicolas Maduro in Venezuela, Evo Morales in Bolivia, Juan O. Hernandez in Honduras, and Nayib Bukele in El Salvador have all followed this recipe. In Argentina, reelection-ism was used by the presidential couple Nestor Kirchner and Cristina Fernandez, and with “feudal” leaders such as the Kirchner’s in Santa Cruz, the Rodriguez Saa family in San Luis, or Insfran in Formosa – the latter having spent 30 years in power.
With its sentence, the IACHR ratifies that indefinite presidential election isn’t protected by the American Convention and “the provision and application of requirements (not being able to run indefinitely for the presidency) do not constitute, per se, an undue restriction on political rights. Those rights are not absolute and may be subject to limitations” on political participation. The Venice Commission (Constitutional Consultation Body of the Council of Europe) also noted: “the right to be elected is not an absolute right and may be subject to objective and reasonable limits,” adding that “limiting presidential mandates in presidential systems is not limiting the right to participate, only to run indefinitely”.
The central proposition of a democratic government is to limit the power of the rulers, avoiding a concentration of power, and to protect their citizens’ fundamental rights and liberties. In fact, political pluralism and alternation in power are useful principles for combatting autocracy and protecting democracy. Constitutional prohibitions on indefinite reelection are an effective way to prevent tyranny and the perpetuation of one person or family in power.
*Article written in collaboration with Ruben M. Perina, a political consultant columnist on topics relating to his specialty, and originally published in the Argentinian newspaper “La Nacion.”
Republished in Spanish by Confidencial and translated and posted in English by Havana Times.