Former magistrate Rafael Solis: “The presence of the IACHR as a qualified guarantor is fundamental.”
“If they only reach a general agreement of intentions in the dialogue, they’ve achieved very little,” Solis states.
By Wilfredo Miranda Aburto (Confidencial)
HAVANA TIMES – Former magistrate Rafael Solis, previously one of Comandante Daniel Ortega’s principal political operators within the Judiciary, was surprised by Foreign Minister Denis Moncada’s declarations regarding the government’s refusal to discuss early elections at the dialogue being held at the INCAE business school in Managua.
Although Moncada offered these declarations to one of the media outlets, Solis disregarded the idea that it was “a publicity maneuver”, but believed it was a “decision made by Daniel [Ortega] and Rosario [Murillo].”
In an open letter on the national dialogue, Solis urged the reinstallation of the Inter-American Commission for Human Rights (IACHR) in the country and recommended that a more detailed agreement be formalized in the negotiations to avoid having the process failing.
“If they arrive at, let’s say, a poetic agreement, one of intentions, they’ve achieved very little,” Solis told Confidencial in the course of the interview below, conducted before the current dialogue agreements were released on Friday, March 29.
Dr. Solis, in your letter of political rupture from the regime three months ago, you assured that President Ortega had no will to seek a peaceful solution through dialogue. Why is he engaging in dialogue now?
There are four factors at play. There’s strong international pressure, for example from the OAS, the United States government and the European Parliament. Then there’s an economic factor: the economy is very bad and it’s heading for a crash. If this dialogue weren’t held, it’s obvious that later the banks will begin to fail, the companies to have massive closures, as is already happening. Third is the internal pressure that hasn’t stopped existing, and adds to the economic pressure. Even if there weren’t a lot of repression, the atmosphere hasn’t returned to normal. What’s happening is that people have been very afraid of demonstrating, but if you look at the polls there’s a large majority who say that this is wrong.
The fourth factor is Venezuela. The Venezuelan road is one that [Ortega] is going to want to avoid. No one wants to dialogue with Maduro, everyone says that he must go. So, the events in Venezuela have also had an influence. Over this period of time, those four factors made him change.
You’ve criticized the ninety-day period for the total liberation [of the political prisoners] as excessively long, and said that, instead, it could be accomplished in thirty days. Is it possible to annul the political trials?
It’s possible, because there are numerous irregularities. I can point to 10 Constitutional articles that have been violated, of the 16 that exist, all from sections 33 and 34 of the Constitution, although probably they’ve all been flouted. That fact serves to nullify the trials. Some lawyers have told me that it might be better to have verdicts of acquittal, instead of nullifications; that they’re hoping to finish the trials and have them [the victims] declared innocent. I’m not against that; in reality both options exist. Either you declare the trials invalid or you wait for them to finish and declare innocence, but that might take a little more time.
The lawyers told me that the problem with nullification is that later the District Attorney could initiate the legal process once again. However, I reminded them that a verdict of acquittal could also be appealed. What we’re all saying is that this must be a specific signed agreement of the dialogue. It must be put in writing that both sides, the government delegation and the Civic Alliance, are in agreement about the cases that are going to be annulled, and that others are going to opt for a verdict and an acquittal. All of this must be noted, so that the District Attorney’s office can’t accuse them again, as has happened with three cases of young men who were released from jail and then arrested and taken prisoner again.
The Civic Alliance insists on involving the IACHR in the process of liberating the political prisoners, since the mandate of the International Red Cross bars them from helping define the legal mechanisms to assure total liberation and the annulment of the trials. What kind of mechanisms should be used? Absolutions or pardons?
The presence of the Inter-American Commission for Human Rights is fundamental. The IACHR isn’t in favor of either a pardon or an amnesty. They could go for the route of nullification of for the acquittal verdicts. In the cases that haven’t yet gone before the judge, it’s even easier because the police can just let them go. There are around 200 prisoners being held in police stations without having gone on to the La Modelo prison.
The presence of the IACHR is fundamental and it’s a point that the Civic Alliance should be proposing every day, It’s a more qualified guarantor than the people delegated by the OAS, because those delegates are experts in electoral matters. In contrast, the IACHR has expertise on topics of human rights and prisoners.
Why won’t the government allow the IACHR to enter?
It’s because of the reports, the first and the second. But that’s where Almagro [Luis Almagro, OAS Secretary General] should take a stronger stance. They can let some days go by, but then if the government continues its negative position, they must pronounce and insist that for the OAS, the presence of the IACHR is fundamental. The IACHR is the ideal guarantor for following up on the cases of the prisoners.
The government has been clearly reluctant to accept the Civic Alliance’s proposal. It appears that it plans to negotiate with the freedoms [to be restored], or put conditions on it. Can you negotiate with constitutional rights?
They’re non-negotiable, but since they’ve been violated, there should be a specific agreement established. You can’t put out a general declaration saying that the dialogue respects the constitutional rights of assembly, organization, free expression, etc. because what you’re doing then is repeating what the constitution says.
What I propose is that, yes, there should be a paragraph expressly dedicated to the most important rights that the government has violated… and if necessary, these agreements should be legalized via laws passed in the National Assembly or decrees from the executive branch or reforms to the laws. How is it possible that they’ve reformed the laws to make demonstrations prohibited or permitted according to the police criteria if it’s a right that’s in the Nicaraguan Constitution? If they arrive at, let’s say, a very poetic general agreement, one of intentions, they’ve achieved very little.
Can the dialogue continue and obtain results if the government doesn’t stop the repression?
That’s the million dollar question. I feel that the Civic Alliance is making a great effort. Their position is to continue the dialogue, but they can’t continue it indefinitely or over a long period of time if the government maintains the police repression. What are you doing in a dialogue if they’re repressing you on the street? You can’t be negotiating on the one hand and have the police repressing on the other. It’s a contradiction.
Another of the topics that’s pending in the dialogue is disarming the paramilitary groups. In your opinion, how should these armed groups outside the margin of the law be dismantled?
The possibility should be weighed of passing a law about national disarmament, or issuing a presidential decree, which is even faster. Such a law needs to state that in Nicaragua the paramilitary groups are prohibited, even though they’re already prohibited by the constitution. The fact is, we come back to the same thing. But now, we have to be concrete because the paramilitary or para-police groups are out there on the streets. Just this past Saturday they went out on motorcycles with their faces hooded. First, the existence of these groups must be prohibited. Second, the Army, or some cases the police, must be ordered to proceed with the disarmament of all these groups. Third, penal sanctions must be established for those who don’t obey and continue to brandish firearms.
Further, it should be left established that war weapons are to be used exclusively by the Army. The police should carry short arms as they do all over the world: tear gas or hoses, that type of thing. But the paramilitary groups must be totally prohibited, because they’re a third armed force and therefore of an unconstitutional character. That should be put into words. In addition, the police at one point stated that these were voluntary police, so the law has to be reformed to leave it established what the role and the place of voluntary police are, which isn’t that. A police volunteer isn’t a paramilitary. They have other functions established by law and it would be a good thing to ratify them so as not to pin the corpse on the voluntary police. That’s outrageous.
The Civic Alliance has revealed that on the topic of justice they’re going to ask for the repeal of the terrorism law. How do you see the impact of these regulations on the country?
The law seems good to me, but it needs to be reformed. In some articles, the law is linked to international terrorism, such as the Islamic state that goes around the world laundering money. There was a lot of pressure from the United Nations to define the way to combat that type of world terrorism. However, with respect to what they [the government] consider terrorism and how they’ve been applying the law, that’s not terrorism. The overwhelming majority of what happened was a civic protest. I agree that it’s a topic that should be discussed and….used only for clear cases of terrorism: someone who goes and places a bomb in a restaurant. The law must be depoliticized.
During a television interview on Thursday (March 28), foreign minister Denis Moncada denied that the topic of early elections was on the agenda for negotiation. Is Daniel Ortega still insistent on staying until 2021?
Denis’ declaration took me by surprise. If that’s the government’s position, as far as I’m concerned, the dialogue can be ended. One of the basic points that have been spoken of from the beginning is moving up the elections. Moncada could at least have said: ”The government’s position is that we continue in power: that there’s no early election, and the president ends his term in 2021. Nonetheless, it’s a topic of discussion in the dialogue, because it’s been raised by the other side.”
But the way in which he said that it wasn’t even a topic of discussion on the dialogue agenda, seems barbarous to me. How are you going to deny the other side the right to bring up that topic on the discussion agenda? I believe that the government is really taking a hard line with this, and it’s not just a publicity move for outside, or to calm the Sandinista grassroots. It left me with the perception that it was a decision already made by the comandante and Rosario, and that they’re very closed on that point.
What elements should the electoral reform and the advanced elections include?
Reform the law once again. They need to take advantage of what has already been done in the bilateral commission with the OAS as a third party. But now you have to bring someone from the Civic Alliance into that commission. It can’t continue being a bilateral commission, it has to be the government, the OAS and the Alliance. Redo the Electoral Law in a super-rapid way, working daily so that you can finish it in a short time and name a new Supreme Electoral Council.
That’s why they talked about extending the negotiations a little more, to April or May. However, if you leave it as merely a general recommendation in the dialogue agreement, they [the government] will choose the new magistrates and will reform the law with their deputies in the National Assembly. That topic has to be part of the dialogue. It’s very important that the blue and white movement, and the Civic Alliance take part in the elaboration of a new Electoral Law. If not, if you leave them out and only the recommendation remains, it means nothing, and later there’ll be problems. At the very least, a commission that’s parallel to the 12 participants in the dialogue should be named, so that later they can bring their proposal to the negotiating table and to the Assembly or the president for approval.
You’ve mentioned that a Constitutional Assembly should be set up to write a new constitution. Why?
I feel that a new constitution is necessary. Not only for the issue of permitting one-time reelection that I’ve acknowledged and repented for supporting [in the past]. After the court did that, the Assembly passed a constitutional reform in which reelection was allowed indefinitely, for any number of terms. But a new constitution isn’t needed just for the topic of reelection – that could be resolved with a partial reform. It’s important to reestablish the separation and independence, the balance and equilibrium of the branches of the state. We must return to giving the National Assembly more powers, take away some of the faculties that have been given over to the Executive.
On April tenth, the terms of both the electoral and the judicial magistrates are up, but you recommend extending their current periods. Why?
There’s a risk that next week the government will already name the new ones. So, if the political constitution – in the reform before last – left it established that the magistrates could continue in their posts while the new ones are not yet named, it’s preferable that they continue for that time, so that the new ones can be named by consensus in the dialogue. Otherwise, what’s going to happen is that next week the magistrates for both of the state powers could be named. This would violate the spirit of the dialogue. They should be named by common agreement in the dialogue, even though the Electoral Law isn’t finished. Otherwise, you’re giving the government, with their 70 deputies in the National Assembly, the possibility of naming the (new) magistrates.
The IACHR’s Interdisciplinary Group of Independent Experts has recommended a Special Prosecution for investigating the crimes in Nicaragua. What’s your opinion about this? Will it be possible to achieve this as part of the negotiation?
That’s a delicate and difficult topic. It’s interesting what the Colombians did to arrive at the pacification process. They created a broad international truth commission with well-known personalities to determine all the cases where there were crimes outside of a war setting. There are many cases of war when you’re violently confronting someone but you’re not committing a crime because it’s combat. But here we’re talking about the crimes committed [in Nicaragua], some of which were crimes against humanity or assassinations.
The Commission later finished its work in Colombia and the Special Prosecutor’s office was created. That was the body charged with the cases that were considered serious enough to be taken to trial. The family members of the dead came to those trials to declare, and if the accused pleaded guilty they received some benefits as far as sentencing. After a time, they could be placed on parole.
The topic of justice must be studied more and gone into more deeply to define the Prosecutor’s role. A truth commission should be created with an international character and later we can see if it’s preferable to create a special jurisdiction. The current judges shouldn’t be the ones in charge of this.
Foreseeing that the dialogue reaches an accord in the upcoming days: Would you expect an agreement? What kind of implementation and verification mechanisms are needed to assure compliance?
There are those who maintain that the dialogue should conclude in the coming week, with a general agreement and general declarations; that the agreements don’t need to be very concrete. As far as that goes, it’s preferable that they take a little longer and discuss the six topics deeply, ending with a series of recommendations.
If you don’t leave it well established in writing, if you don’t leave the guarantors with enough faculties and you don’t leave the legal mechanisms established, we’re leaving it up to the government’s good faith. If the agreement is left too general, I see this as outside of all logic, like a document of good intentions. If they sign it and don’t fulfill it, the country is going to become much more complicated still, and the people won’t believe in the dialogue because they’re going to say that there were agreements and they weren’t kept.