Venezuelans look for Constitutional solutions to the crisis.Democracy
On September 20, Governor Henrique Capriles told the press that, according to a survey conducted in August by his government, 17.2 percent of the Venezuelan population were getting their food from garbage. It is so shocking imagining that more than 5 million people in Venezuela get their food by digging through garbage, that the figure renders worthless the task of going one more time into describing the horrors of runaway violence, increasing poverty and famine, generalized medicines and food scarcity, and three digit inflation rate, among many other serious problems this South American country is going through.
The main reaction of some—when they are told about this tragic situation and are shown the figures that characterize the current Venezuelan crisis (involving the social, economic and political realms)—could be one of disbelief (a form of denial) thinking the figures were overstated. But after reading again, checking they had not misread, they start asking themselves how something like this happened in the first place. And what Venezuelans could do, if anything, to overcome this crisis.
Two and a half years ago, in February 2014, a faction of the opposition led by María Corina Machado, Leopoldo López, Antonio Ledezma, and their allies, detached from the rest of the opposition. These three shared a style of opposition politics characterized by a direct way of addressing the regime´s leaders, an accurate and unambiguous political discourse, and an insistence on classifying the Venezuelan government as a ruthless dictatorship.
When Machado was working as an elected Deputy in January 2012, she was courageous enough to directly address late president Hugo Chávez the day he gave his annual address to the National Assembly, then controlled by the Government. She told him that to expropriate so many privately owned companies was stealing (expropriar es robar). In March 2014, Machado was removed from office as Deputy on allegations she violated two articles of the Constitution after having accepted a position of "Alternate Ambassador" of Panama to the Organization of American States. Although the regime has repeatedly threatened it will prosecute her for being involved with a conspiracy to kill the president, this has not happened yet.
López is an opposition leader with a tradition of being tough in his discourse against the regime. His popularity was probably the main reason why he was banned from standing for the election of the Mayor of Caracas in 2008. According to a court ruling, he was also banned from standing for the elections to the National Assembly in 2010, or for the presidency in 2012. On February 18, 2014, López gave himself to the National Guard. He was then taken to Ramo Verde prison, located outside the capital. He was accused—without proof or witnesses—of a variety of crimes, all of them false. After a suspicious and biased trial, he was sentenced to a prison term of nearly 14 years.
Ledezma has also been a victim of the regime´s policy of neutralizing its fiercest opponents. Ledezma won the mayoral election in Caracas on December 8, 2013. When he came out on February 2014 as one of the leaders who was endorsing La Salida, however, the regime pointed him out as one of the new threats who needed to be neutralized. Then, on February 19, 2015, the Bolivarian Service of National Intelligence (Sebin), a body of policemen ascribed to the vice presidency, captured Ledezma in his office on allegations he was implicated in a conspiracy (Operación Jericó) aimed at murdering the President.
He made most of the world (including the wisest analysts) believe he was a democratic leader deeply concerned for the welfare of the weakest sectors in society. The truth is that very early in his political career he learned how to walk that thin line that demarcates a dictatorship from a democracy. Additionally, he found out that fighting for the poor and the excluded could be a productive policy and narrative.
After Chávez died, Nicolas Maduro took control of the regime. Although he has been awkward in walking along Chávez’s path, as have his allies, certainly the strategy of disguising your own intentions and making others believe you are a democrat is still one of the most valuable assets of the regime. Indeed, that dissembling strategy, seems now to be the regime's single non-violent option for survival. An expected outcome of the implementation of this strategy is that the opposition was not united (at least until very recent times) in its agreement that Maduro should be called a dictator. Because of the insistence of Machado, López, Ledezma and their allies in unambiguously designating the regime as a dictatorship, this faction of the Venezuelan opposition were named The Radicals.
These so called radical leaders, without having previously reached an agreement on their strategy, organized a rally in February 2014, and outlined the key points of their strategy they called La Salida (The way out)—a reference to the variety of constitutional paths of action that could foster a regime change.
The five constitutional options La Salida introduced, which Venezuelans could try to get rid of the regime, were as follows:
1. The Resignation of Maduro. An eventual resignation decision by Maduro would depend on the likelihood that the people rise to an unbearable level of discontent. That level was not reached in 2014. Compared to that year, things have worsened in almost every area in 2016. The critical level, however, has still not been reached. Notwithstanding this, over the last months, promoters of this strategy have come out with arguments that they believe would trigger a quick resignation of Maduro. For example, Blanco Rosa Mármol de León, Emeritus Judge of the Venezuelan Supreme Court, sustains that the National Assembly should request Maduro produce indisputable proof that he is Venezuelan by birth and does not have dual nationality. So far, Maduro's birth certificate has not been disclosed, and the suspicions remain that he was not born in Venezuela, as the Venezuelan Constitution specifies as a condition to be President.
2. The Recall Referendum. This option had been the chosen strategy until October 20, 2016, when criminal courts in five states invalidated the 1 percent process of the collection of signatures (that had taken place months ago), alleging there had been a fraud. This 1 percent stage is defined in the official procedures for the recall referendum of the President (Normas para Regular los Referendos Revocatorios, approved by the CNE on March 27, 2007). It states that the promoters of a recall referendum must submit, within a period of 30 calendar days, a request for the establishment of the Association of Citizens with the support of declarations of will amounting to 1 percent of the voters registered in the Electoral Register. It is just one more bureaucratic process aimed at discouraging any initiative to foster a recall referendum. What was suspicious is that hours after that rare alignment of actions of criminal courts, the CNE suspended the recall referendum. The previously planned stage of collection of the signatures needed to reach 20 percent of the voters that was going to be held between October 26 and 28, would never take place.
The recall referendum was officially supported by la Mesa de la Unidad Democrática, a political organization which has evolved to become the largest coalition of opposition parties in Venezuela. It wouldn’t have been the first time the Venezuelan opposition attempted to get rid of the regime taking this path. On August 15, 2004, a referendum was held to determine whether Hugo Chávez, then President of Venezuela, should be recalled from office. This recall referendum was announced on June 8, 2004, by the Venezuelan Electoral Authority (CNE) after the Venezuelan opposition succeeded in collecting the number of signatures required by the 1999 Constitution to effect a recall. Although the result of that referendum was not to recall Chávez (58 percent voted no), there were allegations of fraud which were never conclusively proved.
The weakest aspect of a recall referendum is the large dependence it has—regarding its approval, as well as the various details of its implementation schedule—upon the decisions of the CNE whose board is pro-regime (four of its five directors are open supporters of the regime). This weakness was widely evidenced during the recent (illegal suspension of the recall referendum by the regime.
3. An Amendment to the Constitution. The aim of this strategy was to shorten the presidential term so that the election of a new president could take place by December 2016. It was an option defended by Causa R, one of the member parties of the Mesa de Unidad Democrática (MUD), a coalition of opposition parties. The possibility of making an amendment to the Venezuelan Constitution is established in article 340. The option was considered at the beginning of 2016 because it could be called with the sole support of the super majority (2/3 or 112 of the total number of 167 Deputies) at the National Assembly the opposition had won in the elections held on December 6, 2015. On April 21, 2016, however, a ruling was issued by the Supreme Court. There it was argued that an eventual amendment to shorten the President's term would not be retroactive. It was only after this ruling that the MUD decided the recall referendum was an easier option to implement.
4. A Constituent Assembly. This is provided for in article 348 of the Constitution, which grants the National Assembly the power to call for a Constituent Assembly if a super majority has voted for it. This assembly is a national meeting of elected representatives who have the task of reaching an agreement on the rules that will govern the relationship between rulers and the people. One of its frequent goals is the drafting of new constitutional documents that have to be voted on and approved by the people. The late president Chávez claimed that the Constituent Assembly was the original seat of unlimited power. In Venezuela, the closest precedent was the Constituent Assembly called by Chávez to draft the 1999 Constitution. Because of its unlimited power, bringing together a Constituent Assembly would be a radical path to getting rid of the regime and changing the status quo. It is also a path that adds uncertainty and chaos to the deep and complex crisis the country is going through. These were a few of the reasons this option was put aside.
5. Civil Disobedience. Article 350 of the Venezuelan Constitution establishes: “The Venezuelan people, loyal to their republican tradition and their struggle for independence, peace and freedom, shall disown any regime, legislation or authority that goes against the values, principles and democratic guarantees or that undermines human rights." Article 333 makes space for additional actions to defend the Constitution as it entitles every citizen to engage in actions aimed at restoring the Constitution. It says: “This Constitution shall not lose its effect if it ceases to be observed due to acts of force or because or repeal by any means other than those provided for herein. In such eventuality, every citizen, vested or not of authority, has a duty to cooperate in restoring its effective force.”
That said, civil disobedience is a chaotic and poorly structured option. Further, it is complicated to accurately predict the outcomes in terms of final distribution of power. A general strike could be a starting point for the implementation of this strategy. The main risk is that the chaos unleashed could open a window for the military to violently intervene and eventually seize power. Due to implied risks, this strategy has to be considered a last resort.
On October 23, a strong nine point agreement was approved by the National Assembly. The last point of this agreement states:
“Summon the Venezuelan people, under the constitutional provisions, in particular those of Article 333 of our Constitution, to an active, consistent and courageous defense of our Magna Carta, democracy and the rule of law, until a restoration of Constitutional order is achieved.”
This agreement, where it is also stated that the constitutional continuity had been broken, is the strongest accusation the National Assembly has made against the regime since the Deputies were elected in December 2015. The agreement is also evidence of the degree of confrontation between two State branches—on one hand the Executive, that controls the Judiciary and the CNE, and on the other hand the Legislative.
The Path Ahead: Learning from 2014
A proper appraisal of the costs and benefits associated with each of these options was not made (at least publicly) at the time. The result was that La Salida triggered a time (around two months) of violent protests. It was also a time when the regime's bodies responsible for maintaining public order (National Guard, Bolivarian National Police, Armed shock groups, etc) behaved in a brutally violent and repressive manner. In the end, 43 people were killed, most of them young people from the opposition. It is a shame that it took the protests and the killings to lead to a process of understanding and appraising each one of the available options in order to foster a regime change.
By mid April 2014, those leaders of the opposition who had not been involved with La Salida attended a call for dialogue at Miraflores with Maduro and his allies. That event, the Dialogue, effectively demobilized the people who wanted to foster a change. The regime gained precious time, its most urgently needed resource. By the beginning of June 2014, the time of protests was over. The leaders of La Salida had lost. López had been put in prison on serious charges, Ledezma had also been captured, and Machado had been (illegally) removed from her position as elected representative at the National Assembly.
There was also, however, a less pragmatic goal the promoters of La Salida were seeking: to erode the democratic make up of the regime in order for the world to become aware of its authoritarian and totalitarian nature. Even if the protests failed to trigger the desired regime change, they succeeded regarding this second goal.
Counterfactual assessments are unrealiable and risky. We shall never know what could have happened if La Salida had never been proposed in February 2014. Nonetheless, a retrospective consideration of the events associated with La Salida might lead to the conclusion that the time was not ripe in 2014 for seriously thinking that the main role of a coalition of opposition parties was to trigger and foster any path (within the Constitution) capable of resulting in a regime change. Indeed, at that time, most of the non-electoral mainstream opposition discourse was seeking to rectify the policies implemented by the regime (with appalling results) rather than directly addressing the necessity of a regime change.
At the present time, the crisis and the suffering it is causing, are what have pushed the opposition to change its mind and embrace the options presented two years ago by the leaders of La Salida. The alternative to doing this would be waiting until 2019. In 2014, this option just seemed too distant—demanding too much sacrifice from the Venezuelan people—to quietly await its arrival. In looking at our current situation, the idea of waiting until 2019 is far more disturbing given the dimensions and complexity of the crisis the country is undergoing under the rule of Maduro and his allies.
It has been said that MUD´s official strategy to get rid of Maduro is the recall referendum. One of its more conspicuous leaders, Henrique Capriles (who in 2014 was not aligned with La Salida and in some cases acted as one of its strongest opponents), has been the undisputed leader of this option. His argument to justify so radical a change in his position is that in 2014 the problematic situation in the country had not reached the extremes it has reached in 2016. His underlying assumption seems to be that only extreme necessity paves the way for a regime change.
By mid March 2016, led by Capriles, the opposition started asking the Consejo Nacional Electoral (CNE) to initiate the process aimed at implementing a recall referendum. A formal reply from the CNE, interpreted as a kick-off for the process, occurred on April 26, 2016, when the CNE handed MUD a final version of the recall referendum's activation form. As it was already said in a previous piece, the CNE has sabotaged the process, imagining all possible hindrances in order to make it impossible for the referendum to take place in 2016. It is easy to see that the CNE has behaved according to an inferred guideline of delaying the referendum as much as possible so it does not take place until 2017. If their attempt to delay is successful, according to the Constitution, the recalled President has to be replaced by the Vice President instead of calling for a new presidential election.
On September 1, 2016, in order to increase political pressure and make more costly an eventual refusal of the referendum by the regime, MUD called for a massive march towards Caracas. The event was called La Toma de Caracas. Despite the various strategies the regime implemented to thwart this event, some violent and others in violation of the human and political rights of the opposition, the rally was a success. According to estimates, over 1.1 million people (a figure considerably higher than the 30,000 Delcy Rodriguez, Venezuelan Chancellor, reported to the press), peacefully filled 18 kilometers of avenues in Caracas. There were not only opponents asking the CNE to publish the final schedule for the referendum confirming it was going to take place in 2016, there were also discontented and disenchanted people (former Chavistas but not Maduristas included) who were tired of the regime and its policies bringing them poverty, illnesses, death.
Although the September 1 rally was massive—photographs taken by a drone are proof of it—some of the analysts did not consider it bold and intimidating enough for the regime to change its intention of either postponing the referendum until a time it becomes innocuous (after January 10, 2017), or plainly making the opposition to desist completely with this preferred regime change option.
The period between September 1 and September 20 was relatively uneventful. Then, on September 21, the CNE board approved—with the dissenting vote of Luis Rondón, the only non pro-regime director at this institution—conditions aimed at either strangling the referendum or postponing it until January 10, 2017, when it does not imply a regime change. The next step, according to the unofficial and not yet published schedule, was going to be the gathering of 20 percent of the signatures (of all the voters). It is a condition prescribed by the Constitution to activate the recall referendum. This event should have been held between October 26 and 28. Once this was done, the CNE should have announced the day when the referendum was going to take place. Although there was plenty of time for the referendum to be held in 2016, it is very likely the CNE would have set a date for the referendum in 2017. Henry Ramos Allup, president of the National Assembly, had claimed that the Supreme Court, on orders of Maduro, was preparing a ruling aimed at declaring the referendum a fraud. What Ramos Allup never expected was a suspension of the referendum coming from actions taken by criminal courts. Mainly because by law, the CNE is not required to abide by actions of those institutions.
Many political leaders, analysts and experts believe the decision made by the regime of finally closing the floodgate that was the recall referendum, opened a dangerous door to an already complex crisis. The risk is now high that the opposition and the people might start believing the only (and easiest) way out of their misery is a radical and potentially violent strategy—one that might bring more chaos and violence to the Venezuelan society. This is a result that would not necessarily be beneficial for the leaders of the regime, nor to those of the opposition. And arguably much less beneficial to the people who are going through an already tragic and painful situation. If the discourse of the opposition leaders has to become more direct, rough, and tough in order to more effectively persuade the regime not to resists a change, they should quickly start shifting it in that direction.
Images of newborns in cardboard boxes in place of proper hospital cradles virally circulated over past month. They just add onto previous images of corpses in cardboard coffins. El Gran Combo, a Puerto Rican Salsa music orchestra had this song Los zapatos de Manacho. The sadness of the song rested in the image of a character, Manacho, who walked with cardboard shoes.It is this image the opposition leaders should carry in their minds as they make this historic decision on which course of action to take in the days ahead in order to pursue the fastest and most likely path to getting rid of a ruthless and deaf regime.
Venezuela, Maduro, La Salida, Hugo Chavez