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Venezuela: The Recall That Matters

By Carroll Andrew Morse, Tech Central Station

07/05/2004 - Can democracy exist when people outside the government play by the rules, but people inside the government change them when they do not like the results -- or just ignore them altogether? This question underlies the petition drive to force Venezuelan President Hugo Chavez into a recall election.

The constitution of Venezuela requires that the President stand in a recall election if 20% of the registered voters sign a recall petition. In December of 2003, a petition signed by about 3.4 million people was presented to the Venezuelan body that administers elections, the National Electoral Council (CNE). Currently, the CNE only accepts 1.9 million of the signatures as valid. Of the remaining 1.5 million, the CNE claims that 1.2 million are invalid because personal identification data -- not the signatures themselves -- was filled out by a poll worker or someone other than the signer. Over 300,000 signatures were rejected for other reasons.

After a five-month delay, the CNE has announced procedures to resolve the situation. The CNE will administer a "repair" procedure between May 28 and May 30. On these three days, signers in the group of 1.2 million rejections can go to a public polling place to confirm the legitimacy of their signatures. Signers in the group of 300,000-plus rejections for other reasons will not be allowed to participate in the repair process. Their signatures have been permanently barred.

About 550,000 people who signed the petition need to participate in the repair process in order to reach the total of approximately 2.4 million needed to trigger a recall. If they are successful, the recall election will be held sometime in early August. That, for the moment, is the official word from the government.

Supporters of the referendum regard the "repair" procedure, at best, as a partial victory. The Carter Center, who sent observers to monitor the original collection of signatures, does not believe that the 1.2 million signatures require any additional authentication. In early March, the Carter Center issued a statement saying that "in the case of the petition forms in which the basic data of several signers, but not the signatures themselves appear to have been filled in by one person, we [the Carter Center] do not share the criterion of the CNE to separate these signatures, sending them to the appeals process in order to be rectified by the citizens".

There are doubts about the ability of the CNE to objectively administrate a Chavez referendum. The Miami Herald reported that CNE member Jorge Rodriguez told the president of an election-hardware provider "that election will never take place" when referring to the referendum. The Herald also reported than the CNE has hired a firm "whose touch-screen voting machine has never been used in an election anywhere" to provide voting machines for the referendum. There have been widespread reports of people being fired from government ministries and state run industries for signing the petition, or facing threats of firing if they go to repair a disputed signature.

There is no faith that the Venezuelan courts can act as an impartial check on the power of the CNE. The Constitutional and Electoral chambers of the Venezuelan Supreme Tribunal of Justice (TSJ) are locked in a struggle over who has legitimate judicial authority to rule on recall related cases. A March 2004 ruling by Electoral Chamber restoring enough disputed signatures to force the recall was overturned by the Constitutional chamber. The Constitutional Chamber ruled that the Electoral Chamber did not have authority in electoral matters related to the referendum. Since the current Venezuelan constitution and structure of the court system only date back as far as 1999, there are no agreed upon precedents to determine who has authority in this situation. They are making up the rules as they go.

Should any petition or referendum related matters find their way to a plenary session of the TSJ, Chavez has taken steps to insure that the court will rule in his favor. In the last week of April, the National Assembly approved the creation of 12 new TSJ seats to be added to the existing 20. The new members will all be appointed by Chavez. By the time any petition or referendum dispute is heard by the full court, Chavez will likely have had time to install a commanding majority loyal to him.

There is an active debate within the Venezuelan opposition whether the petition and referendum are meaningful or if they are diversions intended to frustrate and dissipate the energies of the opposition. There is a fear that cooperation with a referendum procedure amidst the campaign of intimidation against petition signers, the belief that votes will not be counted fairly by the CNE, and the confusing and contradictory rulings of the TSJ might only give an aura of legitimacy to an election that is unfair.

When the channels for peaceful change are blocked, the choices can appear dauntingly polarizing. The people can openly revolt or they can accept life under a tyrannical government. Other choices may exist, however, if the situation is larger than one nation's democrats versus its dictators; if the battle line is democrats -- both inside and outside of Venezuela -- versus the dictators in Venezuela, then democracy has hope of triumphing peacefully. The Americas of 2004 may be a historically unique time and place where it is possible to muster enough international cooperation to restore democracy to Venezuela.

The Inter-American Democratic Charter

The uniqueness of the moment lies in the fact that Venezuela is both a member of the Organization of American States and a party to the Inter-American Democratic Charter. At first blush, it seems na´ve to pin the hopes for a meaningful defense of democracy on a multilateral paper guarantee. Other high-level multilateral documents do very little to deter the repressive and anti-democratic actions of state governments. Why should anyone expect the protection of the Inter-American Democratic Charter to be any more effective than the protection of the Universal Declaration of Human Rights or the International Covenant on Civil and Political Rights?

Part of the hope lies in the fact the Charter is relatively new. Signed less than three years ago on September 11, 2001, it has not yet become reflexive to ignore the Charter. Secondly, the contradictions between the principles of the Charter and the events in Venezuela have grown too obvious to ignore. In addition to the traditional state-centric definition of the threat to democracy -- "an unconstitutional interruption of the democratic order" -- the charter also concerns itself with a citizen-centric definition of the threat to democracy -- "an unconstitutional alteration of the constitutional regime that seriously impairs the democratic order in a member state". The Chavez regime's continuing manipulation of Venezuela's political institutions, manipulation intended to limit the political participation of dissenting citizens, is exactly the situation that the citizen-centric definition of the threat to democracy was intended to counter.

In mid-April, the Senate of Colombia passed a resolution asking the OAS to invoke the Charter against the Venezuelan government. (This event, sadly, was not covered in the mainstream American media). The resolution cited CNE and TSJ obstruction of the recall petition, as well as concerns about government-sponsored intimidation of the opposition. Within a week, three different groups -- the government of Venezuela, the Colombian foreign ministry, and the OAS Secretary General -- had responded to the Senate's request. Alas, their reactions suggested that people of the Americas may still succumb to the temptation to toss the Inter-American Democratic Charter on to the ever-growing pile of frequently ignored, multilateral agreements.

At least two different rationales denying the applicability of the Charter to the Chavez regime were offered. Jose Vicente Rangel, vice-President of Venezuela, and Cesar Gaviria, OAS Secretary General, concurred (in separate and unrelated statements) that the request was invalid because it did not originate with a "government". The Colombian foreign ministry went even further. The ministry stated that its foreign relations with Venezuela are "managed having the principles consecrated in the Charter of the United Nations as frame and guide". The United Nations Charter is infamously silent on the subject of democracy. The response of the Colombian foreign ministry comes dangerously close to repudiating the commitment to the Democratic Charter.

Given the Chavez regime's history of lashing out at dissenting views, the defensive reaction of the Venezuelan government is wholly unremarkable. The quick rejection by the OAS Secretary-General, on the other hand, risks marginalizing both the Democratic Charter and the OAS itself.

The statement that invocation of the charter must be initiated by a "government" is not quite correct. According to Article 20, procedures involving the Charter may commence at the request of a government or the OAS Secretary General. Though it is true that Secretary General Gaviria is not required to convene the OAS at the request of the Colombian Senate, he should consider providing the Senate a substantive answer, not a procedural one. He should explain why the ad-hoc rule changes of the CNE and the restructuring of the TSJ, actions intended to obstruct a constitutionally mandated popular referendum, are not "unconstitutional alterations of the constitutional regime that seriously impair the democratic order in a member state". He should explain why his office has not yet given serious consideration to use its right to invoke the Charter.

The procedural dismissal -- and the unwillingness of any other OAS government to take up what the Colombian Senate has started -- casts doubts upon the readiness and the willingness of the OAS to enforce the commitment to the Democratic Charter. Allowing such doubts to linger decreases the chances of a peaceful resolution in Venezuela. Peaceful restoration of Venezuelan democracy depends upon the people of Venezuela having access to civil mechanisms not under the control of the Chavez regime. Such mechanisms are embodied, in theory, in the principles and processes of the Democratic Charter; they only exist, in reality, if the members of the OAS are willing to honor their commitment to collectively protect democracy. The failure of the OAS to tangibly show a democratic commitment will send a clear message to Venezuelans that their only options for throwing off a dictator are uncivil ones.

Finally, the loophole that allowed the Colombian foreign ministry's response to the Colombian Senate needs to be closed. Democratic peoples everywhere should insist that the United Nations begin working on its own version of the Democratic Charter, something to deter UN members like China from their recent cancellation of 2005-2006 executive and legislative elections in Hong Kong. Thanks to the work of the OAS, we see that the mechanics of forging an agreement that protects democracy are not impossible.

And if the United States and the other democracies of the world do not see reasonable progress towards a United Nations Democratic Charter within a two-year frame, the United States and the other democracies of the world should announce their intention to withdraw from the United Nations. A different forum where the executive branches of the world represent their interests to one another -- a forum that does not carry the UN's baggage of indifference to the links between human rights and democracy -- can be formed easily enough.

Carroll Andrew Morse is a frequent contributor. He recently wrote for TCS about What Hugo Chavez Means for Democracy.

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