This letter was made public the on March 28th, the day after the chief negotiator for the Sandinista Government, Denis Moncada, gave an interview to a local TV station explaining why it would take time for prisoners to be released, and basic freedoms could not be restored as requested. Rafael Solís, the former top FSLN operative in the Supreme Court, witness at the wedding of Daniel Ortega and Rosario Murillo, and who in January 2019 left the government in protest of the repression of the demonstrations, wrote this public letter that refutes many of the points in that interview. He specifically points out what legal steps the government needs to take to facilitate the release of political prisoners, restore basic freedoms, disarm paramilitary groups and remove military weapons from the arsenal of the police, reform the Supreme Court and Supreme Electoral Council, and hold early elections, all within a Constitutional framework.
Given the interview on the previous day, it was a surprise when the Civic Alliance and the Government announced significant agreements on many of these issues on March 29, making the following letter by Solís all that more important.
The very next day, Saturday March 30, when groups of Blue and White supporters held sit ins in some of the malls, they were attacked by riot police, some protestors were arrested, an armed member of the FSLN shot 3 people in the mall and was subdued by demonstrators, calling into question the seriousness of the government in allowing freedom of association and expression.
One More Reflection on the National Dialogue: Electoral Issues
Translation of a public letter by Rafael Solís, released through social media, March 27, 2019
[Original Spanish: https://twitter.com/giolealnica/status/1111385651360854016 y https://pbs.twimg.com/media/D2xvUbtX4AEeu3W.jpg]
Even though the National Dialogue is still in the process of scheduling the release of political prisoners and the issue of strengthening constitutional rights, guarantees and freedoms; before getting into the topic of elections I want to make a brief comment on both issues.
In the case of the liberation of the political prisoners, the 90 day term is very long and should be reduced to 30 days, even though it seems very good to me the intervention of the International Red Cross, which should be the Guarantor along with the IACHR of the fulfillment of this Agreement. I have insisted that the quickest way is that all the trials be declared invalid because they are invalid: there is a large amount of invalidities, such as:
- The right to due process and effective legal defense
- The right to be detained by way of a judicial mandate, and not by the police or paramilitaries without a judicial order.
- The right to defense from the beginning of detention.
- The right to be considered innocent until your culpability has been proven
- The right to compliance with the time periods established by the law from the moment of detention.
- The right to be judged by your natural judge and the one in your jurisdiction
- The right to present evidence that your lawyers provide, and that the judges have rejected without any legal basis.
- The right for the trials to be public and not completely behind closed doors as has happened in all the cases.
- The right to your fundamental human rights while in prison: visits from your lawyers, relatives, health care, etc.
- The right to not be subject to abuse and torture in jail.
Articles 33 and 34 of the Constitution point out 16 constitutional rights of those detained and processed, which without exception have been completely violated in these processes, even though I have only mentioned ten of them, they are enough reason to declare invalid all these trials for violations of the Constitution.
In short, in addition there is a large amount of invalidities that every judge in each one of the processes can certify even today, and order the freedom of the prisoners, but in addition if you want to consider the possibility of acquittals, I am not against them, but it would take more time and you would have to wait until each process concludes to be declared innocent, and this could take more than 30 days.
What cannot be accepted are pardons, because they imply that these prisoners have committed crimes, and afterwards were pardoned, or a General Amnesty Law that would take the country to total impunity, and has been done so many times in Nicaragua without it ever having worked.
Now those political prisoners who are not under a court order who could be some 200, should be immediately freed by order of the police, since they do not require any additional process.
On the other point that was begun to be discussed on Monday March 25th, about the fundamental rights, guarantees and freedoms established in the Constitution, I reiterate what I already expressed in my previous article on the right to demonstrate and hold public meetings, the right to freedom of expression, freedom of the press, freedom to organize in associations of any nature, which are fundamental inalienable rights.
In the case of the “right to demonstrate and hold public meetings”, it should be established by Presidential Decree or Executive Decree, and even a Reform to the Law of the National Police (Law 872), that the National Police must grant the permits requested, and strict compliance by the National Police, and that these marches or meetings cannot be repressed by the police or any paramilitary group that may be left after the National Dialogue, because in the National Dialogue paramilitary groups must be left completely prohibited. Even more, the UNAB or the Civic Alliance must hold the next marches in the coming days of April, in order to test the good faith of the government in this negotiation. This Presidential Decree or Executive Decree on the right to protest and public meeting must also be ratified by the members of the National Dialogue and of course that the OAS be the Guarantor of its compliance.
In the case of the other rights, like freedom of expression, freedom of the press and freedom of organization, the procedure should be the same as in the previous case, through Presidential or Executive Decrees that would restore these rights, and not just in a general way, but particularly all the organizations who were affected in terms of their assets and even in the cancelation of their legal statuses that must be re-established.
In addition as I already expressed previously, the “disarming of all the paramilitary groups should be established; this obligation should even be given to the Nicaraguan Army, if the Police does not do it (by law both have this obligation), and that the OAS certify that the disarmament was complete and that in Nicaragua there are no more armed forces than the Army and the Police. In the case of the National Police it should be established that they cannot use weapons of war, but handguns for police use, like is common in the rest of the world, including the use of tear gas, water cannons, etc., but that under no circumstances can they shoot at the population. We should not leave the door open for there to be more deaths in the country.”
It is very clear that the fundamental issue of the National Dialogue is the electoral issue, and even though there may exist a roadmap between the government and the OAS to reform the entire electoral system, including a new Electoral Law and a new Supreme Electoral Council, whose terms expire in January 2020, because a 3 year term was signed in January 2017; all this also should be discussed again in the National Dialogue, and in any case expand the Bilateral Commission of the Government and the OAS with the participation of members of the Civic Alliance in the preparation of the new Electoral Law and the choosing of the new magistrates of the Supreme Electoral Council. But the most important thing is moving up the elections, for which the date must be moved up for the conclusion of included work, in addition to the legal work, logistical in nature, for September 30 of this year 2019, and carry out the elections in February or March of 2020 at the latest, with the participation of at least all the national and international observers who were at the elections of 1990. I am clear that National Dialogue must create a Special Commission that will present to the Dialogue Table the new proposed Electoral Law and the new composition of the Supreme [Electoral] Council, to then take it to the National Assembly. This Commission must work throughout the month of April and probably a good part of the month of May to be able to conclude their work.
In all likelihood the Final Agreement of the National Dialogue can be signed at the end of April or mid May, which will have a sufficient time frame of 6 months to do all the legal and logistical tasks, including the new electoral roll, identification cards of all Nicaraguan citizens without exception, the possible vote of Nicaraguans outside the country, the composition of the provincial, municipal electoral councils and polling boards, without excluding the most important element, which is the granting of legal status to all the political parties or movements that want to participate in these elections, without any exclusions. For the electoral campaign itself, it is enough that it take place in a 4 month period, which is why there is no problem at all that the elections would be in February or March in 2020, and that presidential, legislative and municipal council elections be included; including mayors and vice mayors. This new National Assembly should be granted the faculties of a Constituent National Assembly to write a new Constitution in the terms of 1 year.
Moving up the elections, that would imply a Constitutional reform be done in two legislative periods, but this very year, reforming the Organic Law of the National Assembly [can be done] so that the first legislative period would end this July 15th and the second conclude the 15th of December, so that everything be done in accordance with the Constitution and existing law.
It is important to note that since the expiration of the terms of the magistrates of the Supreme Electoral Council as well as those of the Supreme Court happens on April 10th, their current periods should be extended, as the Constitution establishes, until the Final Agreement is achieved in the National Dialogue about their new members and this Accord. After it is made effective in the National Assembly in June of this year at the latest, it should be the people approved in the National Dialogue who are elected by the deputies of the National Assembly.
The second possibility that seems very difficult at this point but that should not be discarded, because the blue and white organizations have proposed it, that is to say the UNAB and other social organizations, is that the resignation of the President and Vice president of the Republic would happen, and the Presidency be assumed by a deputy elected by consensus in the National Assembly, or in fact a Transitional Government Junta, and the elections are done before, maybe in November of this year, under that President of that Government Junta, which also requires its corresponding Constitutional Reform.
On the issue of justice and the other topics pending in the Dialogue about the implementation of the Accords and the Guarantors, as well as the issue of the suspension of the sanctions, they are topics so important that if is preferible to make reflections about them in the next article.
Rafael Solís Cerda
March 27, 2019
San José, Costa Rica