Venezuela: Between Autocracy and Hope for Acceptable Elections

After years of political crisis and instability, plans for a reconstitution of the National Electoral Council through the opposition-dominated National Assembly have generated hope that Venezuela may be edging towards return to ordinary political competition. Nevertheless, the exclusion of candidates as a result of politically-motivated prosecutions, bans and forced exile, participation of Venezuela’s large diaspora population, and review of the electoral system remain contested – writes Dr Raul Sanchez Urribarri.

The Venezuelan crisis has entered a new phase with renewed efforts to appoint a new National Electoral Council through the opposition-dominated legislature (National Assembly).  These developments emerged against the government’s previous refusal to participate in the National Assembly, and its efforts to control key political decisions – including elections, through the government-controlled National Constituent Assembly (Asamblea Nacional Constituyente).   

After government-opposition dialogues brokered by the Norwegian Government failed, the government proceeded to form a controversial domestic dialogue with a small group of opposition legislators.  Subsequently, the ruling party decided to send its legislators back to the National Assembly and, more recently, the government has agreed to be part of a preliminary Nominations’ Committee to form a new Electoral Council. The Constituent Assembly would not (at least at the moment) participate in the reconstitution of the Council.

An electoral solution the ongoing crisis remains the preference of a majority of Venezuelans.

In addition to signifying a softening of the ruling party’s stance towards the authority of the opposition-controlled National Assembly, agreement on reconstituting the Electoral Council could pave the way towards acceptable legislative elections. Nevertheless, the contestation over the authority of the Constituent Assembly to bypass the National Assembly and other existing institutions could block agreement on the way forward.    

Constituent Assembly: A controversial origin

Venezuela’s Constituent Assembly has been functioning for over two years since its installation in August 2017. It has been central to the controversy that triggered the constitutional and political crisis since opposition leader and President of the National Assembly Juan Guaidó came into the scene in January 2019, denouncing Maduro’s claim to power and pressing for a political transition.

Although the opposition does not recognise the authority of the Constituent Assembly, its decisions are still imposed on them. Many governments, independent organisations, legal experts, academics and political leaders have pointed out that the Constituent Assembly’s convocation, election and installation were unconstitutional –  a fraud to subvert the country’s constitution and retain power. From the outset, President Nicolas Maduro sought to invoke the ‘original power of the people’ to establish ‘a power that’s above and beyond every other, [a] super power!’.

The Constituent Assembly has not dedicated itself to producing or debating a new constitutional text.

The notion of a Constituent Assembly as a body unrestricted by the current Constitution and sitting above all other existing branches of powers was first articulated in Venezuela in 1999 to give the Constituent Assembly invoked by President Hugo Chávez full powers to control and dismantle Venezuela’s democratic institutions established in the 1961 Constitution. The process oversaw the transition to the institutional framework established in the 1999 Constitution. Setting aside the (many) criticisms labelled against this interpretation ever since, this is the same argument now employed to position the Constituent Assembly as a power that sits above all others in the Venezuelan state.

The Constituent Assembly’s original duration was for two years.  However, in May 2019 the ANC extended its duration to ‘at least until December 31, 2020’. Despite the opposition’s persistent condemnation of the Constituent Assembly, and its lack of recognition and legitimacy by dozens of countries in the region and worldwide, it is very unlikely the Assembly will be shut down any time soon.

Legitimating authoritarianism

The Constituent Assembly has not really functioned as a ‘superpower’ but it has served as Maduro’s ‘last trench’, occasionally asserting its authority, especially against the political opposition. Its main role is to constitute, articulate and (possibly) define the constitutional tenets of a new political hegemony amid the most significant political crisis that has threatened the governing party in the last two decades. It is exclusively formed by Chavista representatives, and its decision-making process and discussions take place mostly out of public sight.  However, its sense of mission as a bulwark of authoritarianism are well-known and publicly acknowledged, seeking to defend the country’s ‘peace, independence, sovereignty and national integrity’ in ‘any political and legal domain to preserve national stability’. 

Despite its principal mandate, the Constituent Assembly has not focused on drafting a new Constitution to replace the 1999 ‘Bolivarian’ Constitution. The country seems to be caught in limbo between a constitutional order in crisis that has not effectively been suspended and which abolition is, at best, uncertain, and a Constituent Assembly that does not seem to be fulfilling its main role: writing, debating and producing a new constitution. In the meantime, the country’s battered constitutional and legal order remains formally based on the 1999 Constitution, which continues to be invoked as the country’s fundamental law by public officials and the population as a whole.

The Constituent Assembly has provided a definitive word and ostensible legitimacy to politically motivated electoral decisions.

Although it has not written a Constitution (yet), and it has not dedicated itself to producing or debating a new constitutional text, the Constituent Assembly has fulfilled key roles as a pivotal institution of Maduro’s government. It has contributed to its survival making key political decisions; challenging the opposition-controlled National Assembly; exercising its powers and attempting to sideling its authority; convoking elections, including the controversial 2018 Presidential election that allowed Maduro to seek and win his current term; serving as a forum to reunite and coordinate different Chavismo political factions; and providing a political platform for key politicians, including Diosdado Cabello Rondón, President of the Constituent Assembly and one of the government’s most influential politicians, with strong connections with the military and at the international level.

Soon after its inauguration, the Constituent Assembly appointed a new Attorney General and established a ‘Truth Commission’ to analyse cases of political violence since 1999 (the Commission remains open).  Over its first two years of existence, the Assembly approved about 12 statutes (laws), 63 decrees and 56 agreements.  Despite its contested legal and political origins, the decisions of the Constituent Assembly are de facto binding and effective. Thus, the Constituent Assembly has lifted the parliamentary immunity of at least 20 opposition legislators, so they could be prosecuted for common crimes and removed from the National Assembly.  In November 2017, it created a controversial ‘Law against Hate’ that has already been invoked by the ANC as a mechanism to control dissent. In November 2018, it reformed the Law Against Organized Crime and Financial Sponsoring of Terrorism with a view to punish conducts that ‘promote invasion and the economic blockade of Venezuela’, clearly aimed at threatening/punishing opposition leaders. This law has already been employed by the Supreme Court as an argument to ‘compromise the responsibility’ and authorise the prosecution of opposition legislators, for example in the case of José Guerra, Tomás Guanipa and Juan Pablo García. 

 Tampering with electoral cycles

The Constituent Assembly has become a key player regarding recent electoral contests in Venezuela and could (potentially) play an important role in forthcoming elections. Despite its disputed legitimacy, it has provided a definitive word and ostensible legitimacy to politically motivated electoral decisions.

One of the most controversial actions of the Assembly shortly after its foundation was deciding to bring forward the date for the regional (state governor) elections, held in October 2017, and in which pro-government candidates won significantly amid allegations of fraud, with elected opposition governors asked to take office before the Constituent Assembly and recognise its authority. The Assembly also convoked municipal elections in December 2017,  which were boycotted by several opposition parties and ended with victory for the ruling party.

Hopes for the reconstitution of the Electoral Council within the framework of the National Assembly have created possibilities for acceptable elections. 

 The Constituent Assembly’s role was even more prominent in the 2018 presidential election.  It adopted a decree that continued a questionable strategy of the Supreme Court and the Electoral Council to reduce the number of political parties that could participate in elections, by forcing opposition parties that refused to participate in the recent municipal elections to ‘validate’ their membership roll. Opposition compliance would have meant recognition of the Constituent Assembly’s authority, while refusal would have entailed debarment from participation.  Shortly afterwards, on 23 January 2018, the Assembly agreed to bring forward the 2019 presidential elections to the first quarter of 2018 – a controversial decision that raised the stakes for opposition participation. 

Eventually, the Electoral Council decided to hold the presidential elections on 22 May 2018.  Opposition parties denounced  the election , and many governments, organisations and experts at home and abroad rejected the outcomes. The questionable integrity of the 2018 election was the main reason Juan Guaidó refused to recognise Maduro as president, considered him an ‘usurper’ and began acting as ‘interim President’ with a view to establish a transitional government and seek free and fair elections. Thus, one of the key antecedents of the political crisis the country experiences today was the decision to hold the election earlier than planned. 

A reconstituted Electoral Council and hopes for more acceptable elections

Accordingly, the withdrawal of the Constituent Assembly in decisions related to forthcoming elections is critical for the legitimacy and acceptability of the elections.

The government had been contemplating different avenues to appoint new members to the Electoral Council and pushing for elections, including for the National Assembly, subject to agreement with some opposition deputies, the Supreme Court and the Constituent Assembly. Announcements that the ruling party may agree to the reconstitution of the Electoral Council within the framework of the National Assembly have created possibilities for acceptable elections. 

The Constituent Assembly retains a significant role in discussions surrounding the forthcoming 2020 Legislative Elections, and even a possible (yet unlikely) agreement to repeat presidential election to (re)legitimize Maduro and his government. In August 2019, the Constituent Assembly  threatened to hold National Assembly elections, planned for 2020, before the end of 2019, and appointing a Commission to evaluate this possibility.  Moreover, there are pro-government legislators who still insist in the Constituent Assembly’s need to participate in the National Assembly’s efforts to appoint a new Electoral Council.     

It is critical to constitute a Nominations Committee that is representative of the country’s political forces, including civil society.

Restoring electoral integrity in Venezuela is a challenging process that includes sorting out several roadblocks. The appointment of a new National Electoral Council by the National Assembly following the 1999 Constitution is a major step in restoring democracy in Venezuela. To this end, it is critical to constitute a Nominations Committee that is representative of the country’s political forces, including the participation of civil society in its composition (possibly 21 members, including 11 deputies and 10 members of civil society).  Although a group of the opposition still has reservations about participating in future elections and even the current efforts to appoint the electoral authority (mainly out of distrust for the ruling party’s overt manipulation of previous elections), an electoral solution to the conflict remains the preference of a majority of Venezuelans, and several credible polls suggest that Maduro and the ruling party remain vastly unpopular.     

Thus, an agreement on a new Electoral Council formed according to the Constitution would enhance chances for acceptable elections – even if it is only the 2020 legislative elections without repeating the 2018 presidential elections that were considered fraudulent.  It remains unclear to what extent the government is willing to make any concessions and fulfil key demands of the opposition in order to celebrate free and fair elections. The regime would need to allow opposition parties to participate freely, including many candidates who are currently banned, prosecuted and even exiled.  Moreover, the controversial automatized voting system would need to be reviewed and possibly changed, as the company that used to manage the system no longer operates in the country. Another key challenge will be to create effective mechanisms that allow millions of Venezuelans living overseas as migrants (including many in precarious conditions) to vote in an eventual presidential election. These are some of the severe issues that will need to be addressed in the forthcoming future, so the path ahead remains difficult for the opposition and, more importantly, for the country.

Raul Sanchez Urribarri is Senior Lecturer at the Department of Social Inquiry, La Trobe University.