Blog of the International Journal of Constitutional Law

Fatherland, Socialism or Death

–Daniel Lansberg-Rodriguez

Yesterday a new article of mine came out in Foreign Policy on some of the possible contingencies  for the upcoming Venezuelan Elections. An earlier version of the piece, which the FP editors felt may be a bit too legalistic and technical for their purposes, was just the sort of thing which I suspect might be of more interest to readers here on  since legalities and technicalities are much of what we’re all about. I am posting it below.

The Foreign Policy version (which ended up being almost entirely different) can be found at the following link.

Fatherland, Socialism or Death:
How far might Hugo Chávez be willing to go to preserve his revolution?
In January 2007, after being sworn in as president of Venezuela for the third consecutive time, a beaming Hugo Chávez made a promise to his supporters: “I vow by Jesus Christ,” he told them, “Fatherland, Socialism or Death. I swear it.”
Now, nearly six years later, with his own health dipping and a newly emboldened opposition set to give him his greatest electoral challenge to date, the World can’t help but wonder: in vowing to defend his revolution with his life was El Comandante merely slipping into his trademark rhetorical bombast or was it something deeper? And, if the latter, what might this mean for the Venezuelan people if they decidethat they have lost faith?
On paper Chávez’s personal willingness to step down should be irrelevant as Venezuela, at least in theory, possess one of the most independent electoral systems in the world. The 1999 Constitution is somewhat unusual in that it delineates five separate (and nominally equal) authorities to the government. Beyond the usual executive, legislative and judicial branches it establishes an independent “electoral branch:” an apolitical authority empowered to impartially police the electoral process, tabulate results and announce an eventual winner.
Yet, in practice, constitutional design and reality diverged long ago in Venezuela, and the president’s personal influence is so pervasive as to essentially control every national institution and tendril of governance. For example, Luisa Estela Morales, the presiding magistrate of the Venezuelan Supreme Court, has publically proclaimed her belief that separation of powers “unacceptably weakened the state” despite the constitution’s clear indications to the contrary.
Similarly, four of the five magistrates of the Consejo Nacional Electoral (CNE), the electoral authority, are avowed and loyal supporters of the president and have shown themselves to be far from impartial in practice. During this and other electoral campaigns they have habitually turned a blind eye to countless illegalities and abuses on the part of the government; including the decorating of state buildings with campaign material, the misappropriation of state funds for campaign use, rampantgerrymandering, misuseof emergency powers to commandeer radio and television signals for campaign messaging, and the de facto disenfranchising of Venezuelan émigrés (most of them opponents of the regime) through the closing of the Miami Consulate. Yet while allowing the government veritable carte blanche, the CNE has oft been ready to obstruct the opposition such as their recently censure of Henrique Capriles Radonski, the opposition candidate, for wearing a hat designed after the official flag of the republic.
Thus far the opposition has begrudgingly shrugged off this favoritism, downplaying CNE obstruction where possible in the hopes of keeping Venezuelans excited about the election, and galvanized to vote. There is some internal concern among some opposition leaders however that by thus ignoring the elephant in the room – that the government may simply misrepresent or disregard an unwelcome electoral outcome – they may not be adequately preparing their supporters for such an eventuality.
One high-ranking opposition leader, who preferred he not be named, expressed to me privately his concern that:
“By pretending that this is a normal election and that every vote will be counted, we are giving Chávez the ability to steal the election on a silver platter… If we have been saying all along: ‘go ahead and vote, your vote will matter.’ And then, following an announcement of our defeat, turn around and say ‘so it seems your vote didn’t matter and they stole it!’ What then? Will we be taken seriously internationally? What about domestically?”
A good question…
Of course when it comes to the democratic process there may be no better predictor than the past. For example, expect Cuban elections to be rigged, primarily because they always have been so, while as regards Canadian elections we have been primedto expect the opposite. Yet in this regard, Venezuela is in something of a grey area: while pre-electoral hijinks, abuses, and improprieties are nothing new, dating back to long before Chávez, there have been no clear cases of voter fraud, deliberate miscounting, or of a government refusing to acknowledge results at least since the advent of Venezuelan popular democracy in the late 1950s. In fact, the country’s last unelected dictator, Marcos Pérez Jiménez, was himself overthrown due in no small part to a his disavowal of an unfavorable referendum result over a new constitution, the sheer brazenness of which was instrumental in sparking large-scale popular protests and eventually costing him the loyalty of the armed forces.
Yet despite the fate of Pérez Jiménez, there is considerable circumstantial evidence that, under the current regime, electoral fraud would not be entirely off the table should the presidency be at stake. When, during the 2007 vote to abolish constitutional term limits, Chávez’s government came up short in the vote, the electoral authorities inexplicably demurred for nearly eight hours prior to announcing the results; despite near-instant tabulation systems and some of the modern voting equipment in the world.
According to Yon Goicoechea, a Venezuelan pro-democracy activist and perhaps the most visible opposition leader during Chávez’s 2007 electoral defeat, the government made no secret to him during this time that it was holding meetings behind closed doors while electoral authorities, military leaders and presidential agents “figured things out.” He further claims to have been personally approached by government officials on multiple occasions during this period to “negotiate.”  While eventuallyceding victory, the electoral authorities have to date refused to release the actual tabulated voting results raising the compelling possibility that the government’s decision may have been influenced by more technical concerns in the case that a large margin of loss would have rendered fraud more difficult in a practical sense.
More recently, when the 2010 parliamentary elections delivered a majority of the popular vote to non-Chávez backed candidates; another mysterious multi-hour lag took place. In fact, if one compares the outcomes of elections to the time it has taken the government to announce an “irreversible” result – at least during the eight years that the CNE has existed in roughly its current form – an interesting pattern begins to emerge:
First Announcement
2005 Parliamentary
Chávez wins – running largely unopposed due to opposition boycott
9:45 PM
2006 Presidential
Chávez wins – 63% of the popular vote
10:00 PM
2007 Constitutional Reform
Opposition wins – at least 51%, final results never publicized officially
1:30 AM (following day)
2008 Regional
Chávez wins in 18/22 states. Opposition wins control of most populous areas including Caracas, Maracaibo and Valencia
11:40 PM
2009 Constitutional Reform
Chávez 55%
9:30 PM
2010 Parliamentary
Opposition wins 51% of popular vote, although gerrymandered districting prior to the lection results in only 66 seats out of 144, sufficient only to break supermajority
2 AM (following day)
Keeping in mind this inverse correlation between CNE expediency and result favorability (from a government perspective), in conjunction with Goicoechea’s account, it seems likely that some kind of cost benefit analysis is indeed taking place. That an “independent” authority should feel the need to do this at all likewise highlights the degree to which the decision to accept or not accept, modify or disavow the results of this election is dependent on the president himself and his allies: if not, why not announce immediately?
Therein lies the problem. In previous cases where the CNE eventually accepted unwelcome electoral results, the outcome in question – ie., scrapping term limits, or supermajorityrequirements – could be (and eventually were) brought about later through alternate means. Yet while in 2007 Chávez could accept a temporary setback, garnishinghis democratic credentials while preserving his political capital, his current health problems and Capriles’ promises to dismantleChávez’s revolution should he be inaugurated, render this type of long-term strategic planning unlikely to carry much weight at present.
With a closely-controlled CNE and a green light from the president himself unlikely to be forthcoming, the likeliest outcomes for October 7th would be either a fairly-tabulated Chávez victory or else a stolen election. The challenge for the opposition then will likely lie in telling these two outcomes apart, and deciding what to do about it should they come to believe the latter. According to Goicoechea, had the electoral authorities refused to acknowledge the government’s defeat in 2007: “we were prepared to call the Venezuelan people to the streets to defend their votes.” In his view, Capriles, whom he describes as a strong but responsible leader, would almost certainly be willing to do likewise “but first he would have to know with certainty.”
Yet such knowledge may indeed prove difficult to come by, for while the opposition has done much to secureits access to electoral information, only the CNE itself would be privy to the exact vote counts. This would leave the opposition dependent on more subjective metrics such as exit polling, observer testimonials and the vastly disparate pre-election polls. Likewise, even if the opposition were confident enough in the results so as to call its supporters “to the streets” it is uncertain whether the great crowds that have previously rallied in support of Capriles would still do so should the government suspend constitutional safety guarantees or implement martial law. Yet the throngs of enthusiastic supporters that rallied around the opposition candidate during the closing of his campaign in Caracas on Sunday served, to some, as evidence that among his followers, for now at least, loyalty runs quite deep.
Either way, the opposition leadership may feel they have little choice but to attempt a destabilizing mass protest. With passions running high, it seems unlikely that the opposition could simply wait out such a failure without risking massive disillusion among their supporters. Likewise with the U.S. otherwise distracted by Middle East unrest, Spain bankrupt, Colombia counting on Chávez in upcoming negotiations with the FARC, and Brazilian relations recently strained by an alleged indigenous massacre, the prospects for substantial support from the international community must  seem pretty bleak.
Indeed Chávez has already begun to prepare his own supporters for just such an eventuality, likewise offering a series of cryptic warnings to the opposition that chaos and even civil war might result from his loss.
Recently, former US Ambassador to Venezuela Patrick Duddy released a policy paper through the Council on Foreign Relations outlining possible contingencies for the October 7th in Venezuela. The report claimed that: “…if the public suspects that Chávez has used extra-constitutional means to preclude or invalidate an opposition victory in order to sustain his regime’s hold on power… protests over such actions, which could turn violent, may in turn lead to the imposition of martial law and the further curtailment of democratic rights in Venezuela. This would almost certainly trigger a major political crisis in the Western Hemisphere…”
Unfortunately, were such a confrontation to take place, martial law and reduced freedoms might be the least of it. The worse danger might lie in possible conflict between civilian supporters of either camp. Should victorious Chavistas gathering for their traditional post-election celebration outside of the presidential palace, only to find themselves face-to-facewith opposition protesters demanding a reversal and “defending” their vote, the potentialfor violence cannot, in my estimation, be overstated. Deep-seeded animosity already exists between the civilian support networks of both camps as was recently illustrated through the spat of campaigning violence in the seaside town of Puerto Cabello.
Should this type of worse case scenario come to pass, the restoration of order would depend on the Venezuelan Armed Forces, as in all likelihood would any final decision regarding the contested election itself. Once involved however, it is difficult to know ex ante what the military may do. Unlike other national institutions like the CNE or the courts, whose support for the government is reflexive and can be assumed the Armed Forces are a bit of a black box. While two years ago, Henry Rangel Silva, a high ranking General and defense minister, went on record a few years ago as saying the army was strongly supportive of President Chávez’s administration and would find it “difficult to accept a change in government” more recent comments by Willmer Barrientos, the current head of military operations made an announcement to the effect that among the army, neutrality would indeed be upheld regardless of the outcome.
Mixed messages such as these from among the Armed forces leadership may represent actual divisions within the ranks. While Chávez has been careful to cultivate the support of the top brass, there is little certainty as to how much control these would be able to exert over middle-ranking officers; traditionally the key factor in Venezuelan military interventions as seen in Pérez Jiménez’s initial seizure of power as well as the aborted coups led by (and against) Chávez himself in 1992and 2002respectively.
In a moment of frustration, Simon Bolivar (Venezuela’s first president and Chávez’s personal idol) is said to have lamented of his then splintering empire that while Colombia was a university and Ecuador a convent, Venezuela was more of a barracks. Nearly two hundred years later, it seems a real possible that the choice of his next successor may indeed be decided in one.
Perhaps “Socialism, or democracy or death” would have been more appropriate…



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