Peru’s National Jury of Elections: Guardians of Elections and Guarantors of Democracy

César Landa

Pontificia Universidad Católica del Perú

Constitutional democracy in Peru in the last twenty years has been characterized by the alternation of presidential power, based on the popular will expressed freely and spontaneously at the ballot box by the citizens, through an electoral system that accurately and timely expresses the electoral vote. 

Therefore, it is unprecedented that in view of the results of the presidential election between Pedro Castillo (51.198%) and Keiko Fujimori (49.802%) provided by the country’s independent electoral authority, the Oficina Nacional de Procesos Electorales (ONPE), with 100% of the results processed on June 10, there has been an overflow of challenges and nullities that delay the official proclamation of the winner and Constitutional President of the Republic, in the year of the Bicentenary of the Independence of Peru.

Most of the challenges have been lodged by Fuerza Popular, which has requested the nullity of 802 acts - 250 thousand votes - due to alleged irregularities caused in the voting tables. These challenges are being resolved by the Special Electoral Juries. If they are rejected, the nullity of such decisions may be presented before the National Jury of Elections (NJE).

In the second round of the 2016 presidential election between Pedro Pablo Kucynski and Keiko Fujimori, the runoff results were equally close with 50.124% and 49.876%, respectively. But on that occasion Fujimori accepted the results without major challenges on the day after the final vote count of the ONPE. Although only 29 polling stations were challenged in 2016, when she lost against former President Ollanta Humala, in 2011, only two polling stations were challenged.

The 802 challenges to the vote count presented by Fuerza Popular come, basically, from the southern Andean areas where Castillo has won overwhelmingly. Fuerza Popular argues that there is evidence indicating possible "fraud at the voting tables". Thus, the challenges refer to the alleged falsification of signatures of table members (125,750 votes); falsification of table results (33,000); table members with the same two surnames (16,250); invalidation due to erroneous totals (11,250), and invalidation of erroneous or missing data (14,250). All of which adds up to 200,500 votes. 

However, article 363 of the Organic Law of the National Jury of Elections states that the Special Electoral Juries declare the nullity of tables when "there has been fraud, bribery, intimidation or violence to incline the vote in favour of a list of candidates or a certain candidate.” None of the aforementioned situations corresponds to the present challenges because, for example, the falsification of the results at the table would require a comparison with the votes cast which are, by law, destroyed once they have been counted in the electoral record. In the case of the comparison of different signatures - where there are alleged discrepancies between the signature on the minutes and the one recorded in the national registry, the Registro Nacional de Identificación y Estado Civil (RENIEC) - according to the jurisprudence of the NJE, this does not alter the election result, rather it may give rise to a complaint before the Public Prosecutor's Office.

The Constitution recognizes the citizen's right to due process and guarantees jurisdictional protection; however, it also proscribes the abuse of the right. For this reason, the Special Electoral Juries have begun to reject challenges that have been formulated in a reckless manner without evidence. Without prejudging whether the annulment of some minutes might occur, if the matter reaches the National Jury of Elections, such an outcome should not impugn the neutrality and independence of the electoral authorities engaged in the counting of votes and the collection of the electoral minutes. The alternative would be comparable to the allegations of electoral fraud which former President Donald Trump deployed to taint the last elections in the United States, even judicializing and delaying the electoral results confirming his defeat.

The report of the international observers of the Organization of American States (OAS) "has expressed that it observed a positive electoral process, in which substantial improvements were registered between the first and second round. Likewise, the mission has not detected serious irregularities." Similarly, the results of the Ipsos exit poll at the close of the second round gave Castillo 50.2% and Fujimori 49.8%. In previous electoral processes, these neutral and objective reports have helped to authenticate official results and satisfy the legitimate expectations of candidates.

Therefore, the current denunciations of an alleged electoral fraud constitute a rejection of an orderly and peaceful closing of the electoral result. In the middle of the Covid-19 pandemic, street rallies – from both sides – in front of the NJE premises and harassment outside the residences of the President of the National Jury of Elections and the editor of the newspaper, La República, by the candidate's supporters, are presented as a scenario to raise doubts about the certainty of the vote cast, to unsettle the electorate and to delegitimize the winner. 

For all these reasons, in this year of the Bicentenary of Independence, which demands stability and resolve to overcome the pandemic, ensure school education, recover investment and productive employment, a progressive tax system to alleviate poverty, among other urgent matters, an atmosphere of institutional rupture of the peaceful alternation of presidential power won twenty years ago should not be generated. Therefore, the National Jury of Elections will be the ultimate guardian of elections and guarantor of democracy.

César Landa Arroyo, former President of the Peruvian Constitutional Court, is Professor of Constitutional Law at the Facultad de Derecho de la Pontificia Universidad Católica del Perú (PUCP) and blogger at Constitutional Observatory (https://www.enfoquederecho.com/author/landa/). 

Suggested Citation: César Landa Arroyo, ‘Peru’s National Jury of Elections: Guardians of Elections and Guarantors of Democracy’ IACL-AIDC Blog (20 July 2021) https://blog-iacl-aidc.org/2021-posts/7-20-21perus-national-jury-of-elections-guardians-of-elections-and-guarantors-of-democracy.