Universidad Católica Andrés Bello
The Venezuelan electoral system currently lacks the minimum adequate conditions for electoral integrity. Such conditions have been getting progressively worse in recent years, especially during the fraudulent presidential election of 2018. Actually, the most prestigious international reports of electoral integrity place Venezuela in the bottom of the list when it comes to the application of, and compliance with, conditions for free and fair elections. The Electoral Integrity Project 2018 Mid-Year Update report pointed out that “Venezuela performs extremely poorly on all dimensions of electoral integrity, well below the global average on all dimensions. Venezuela’s PEI Index score has halved across its past three Presidential elections, from 54 in 2012 to 27 in 2018. This decline has been driven in large part due to major falls in the quality of the electoral laws, electoral procedures, party registration, and electoral authorities”.
For years, Nicolás Maduro’s authoritarian regime has undermined the rule of law and the separation of power. Therefore, Maduro’s regime had the support of the National Constituent Assembly, the Judiciary and the Electoral Power to manipulate the Venezuelan electoral system and keep him and the government’s party in power through electoral fraud and rigged elections, undermining the electoral guarantees to their minimum levels.
As a consequence, in order to achieve reliable and fair presidential elections, which are a necessary condition for the return of democracy and the rule of law in Venezuela, it is crucial to achieve a significant change in the Venezuelan electoral system that could guarantee electoral integrity conditions, especially in the following matters:
1. Suppress the National Constituent Assembly (ANC). The ANC was installed in 2017 violating articles 347 and 348 of Venezuela’s Constitution (governing the convening of such an Assembly to exercise constituent power ultimately resting with the people of Venezuela). Its members were selected in a fraudulent electoral process and once installed, this assembly assumed totalitarian functions, which caused a significant break in Venezuela’s constitutional democracy and the rule of law. Such assembly has illegally assumed some of the Electoral Branch functions, such as calling elections, the limitation of citizens’ political rights and the political oath of elected authorities. Therefore, reliable and fair elections in Venezuela require, as its first condition, the dissolution of this Assembly, in order to guarantee that any electoral process will be held in compliance with the Venezuelan Constitution and electoral principles.
2. Appointment of new authorities of the Electoral Power. The electoral arbitrator in Venezuela is the Electoral National Council (CNE). Its current authorities completely lack independence and autonomy and have acted in favor of the government’s party in every election in the past decade. These authorities were appointed by the Constitutional Court and not by the legislative power, as required by the Venezuelan Constitution. Therefore, the CNE is not acting in line with the constitutional principles of equality, impartiality, transparency, and efficiency of the electoral process (article 297). As a result, new electoral authorities must be designated according to the Venezuelan Constitution and the Electoral Act (LOPE).
3. Appointment of new judges of the Electoral Chamber of the Supreme Tribunal. The Electoral Chamber is the one-instance Electoral Court for Venezuela. Its judges were appointed according to political criteria and all of them are loyal to the Executive Power. In consequence, the Electoral Court lacks independence and decides according to political reasons, denies access to justice in electoral matters and undermines the standards of electoral integrity. That is what happened in the 2013 presidential elections, the 2017 National Constituent Assembly (ANC) election, the 2017 regional elections, and the 2018 presidential elections. In addition, the Electoral Court partially overruled the results of the 2015 parliamentary elections, in which the opposition obtained the majority of the votes. An impartial electoral justice, ruling with independence, judicial ethics and specialization in electoral matters is a crucial guarantee to restore electoral integrity.
4. Appointment of new judges of the Constitutional Chamber of the Supreme Tribunal. Venezuela’s Constitutional Chamber (Constitutional Court) can review the Electoral Court’s decisions, decide itself some electoral cases, overrule electoral acts, modify electoral laws, control legislative omissions and clarify the meaning of constitutional provisions by interpretative decisions, among other functions. However, the Constitutional Court has used this power not to guarantee constitutional supremacy but as an instrument of authoritarianism. Actually, the main weapon of Venezuelan authoritarianism in the past 20 years, particularly in electoral matters, has been the Court’s rejection of the electoral claim against the 2013 presidential elections and undermining the Parliament’s constitutional functions. Because of that, any free and fair electoral process requires the prior designation of new Constitutional Court judges.
5. Voter registration. The veracity and reliability of the Venezuelan voter registry have been affected for years by claims of electoral fraud and the absence of periodic audits to update its data. Before the call of elections in Venezuela, it is necessary to update the voter registry, which will include a deep review of the civil registration system. The electoral registration process should be more accessible and transparent, making it easier for voters to update their status and register for voting.
6. Political rights guarantee. Both the right to political participation and the right to stand for elections have been violated in Venezuelan election processes. Since 2008 many opposition leaders have been politically disqualified and imprisoned. Also, many opposition political parties have been rendered illegal, to the point of totally removing electoral competitiveness in Venezuela. A competitive and democratic electoral process will require the restoration of these political rights and guaranteeing political pluralism.
7. Election observation. During the last decade, Venezuela’s election processes have lacked proper international electoral observation. The CNE had only allowed a rigged observation favorable to the government interests that they named “international accompaniment”. Since 2006, the CNE has systematically rejected the Organization of American States (OAS) electoral observation missions, as well as the United Nations (UN) electoral observation mission, which was rejected in 2018. Therefore, it is necessary to replace this biased “international accompaniment” diminished by the CNE and guarantee an election observation based in the principles of transparency and accountability during all of the phases of the electoral cycle.
8. Electronic voting system. The company that has provided the electoral technology to the CNE for more than one decade is the same one that denounced the manipulation of the 2017 Venezuela’s election results. As a consequence, a deep audit of the electronic voting system is necessary. It is also important to restore confidence in the secrecy of the vote and the veracity of the electoral results which has been undermined over the years by the doubts and lack of transparency created by the electronic system.
9. Out-of-country voting. In the past decade, the CNE has limited the right to vote outside the country, arbitrarily requiring Venezuelans to have legal residence in the country in which they live and want to vote. As a consequence of these regulations, more than three million Venezuelans living outside the country cannot vote and only around a hundred thousand of those voters could be successfully registered to vote. Such conditions are unconstitutional and must be eliminated to guarantee equality of conditions for all Venezuelans, whether they reside in the country or abroad.
10. Guarantee of transparency and accountability in the electoral campaign. In recent years, electoral campaigns in Venezuela have been neither fair nor transparent. The government party has illegally used public funds for its campaigns and has committed electoral corruption. There have also been acts of coercion against electoral candidates and control over the media, which prevents any opposition party or candidate to gain the same access as the government to that media. It is necessary to guarantee that electoral campaigns and financial campaigns are fair, equal and transparent and the CNE should apply legal sanctions to correct any kind of campaign irregularities.
11. Banning “assisted voting” and electoral coercion. In recent elections in Venezuela there has been an illegitimate limitation of secrecy of the vote. In a variety of cases the government's party has coerced voters in exchange for food and medicine, and also in some cases, the voter is “accompanied” by someone from the government or government party during the ballot (“assisted voting”). In addition, voters have been required to show the “Carnet de la Patria”, a government party ID, to guarantee that the votes go to the government's party. The CNE should guarantee a free and secret ballot, avoiding any form of intimidation or coercion over the voters, and imposing legal sanctions cases of violation of (reformed) electoral law.
Daniela Urosa is a Professor of Constitutional Law and Administrative Law at the Universidad Católica Andrés Bello, Caracas, Venezuela. She received her Ph.D. in Law from Universidad Complutense de Madrid. She is also a Visiting Scholar at Boston College Law School (2017-2019) and Latin American Constitutionalism Program Coordinator at the Clough Center for the study of Constitutional Democracy, Boston College (2018-2019).
Suggested Citation: Daniela Urosa, ‘Recovering Electoral Integrity in Venezuela: Necessary Electoral Conditions to Guarantee Reliable and Fair Presidential Elections’ IACL-AIDC Blog (20 May 2019) https://blog-iacl-aidc.org/crisis-in-venezuela/2019/5/20/recovering-electoral-integrity-in-venezuela-necessary-electoral-conditions-to-guarantee-reliable-and-fair-presidential-elections