Venezuela Court Rulings Bury Hopes of a Fair Poll

The Maduro government’s latest power play – in which loyalist judges appointed the board that will oversee end-of-year elections – is evidence to many in the Venezuelan opposition that talking is fruitless. But negotiations remain the only route to a stable outcome for the country’s protracted crisis.

In a ruling that was expected as much as it was feared, Venezuela’s government-controlled Supreme Court on 12 June dashed any slender hope that this year’s legislative elections, due in December, might be run by a balanced electoral authority and widely regarded as valid. Instead, declaring that the National Assembly – the country’s parliament – had once again failed to agree on the membership of the National Electoral Council’s (CNE) five-person board, the Court appointed its own, weighted in the government’s favour. The ruling’s immediate aftermath marked yet another low point for Venezuela’s battered democracy. While the opposition lambasted the decision as evidence that President Nicolás Maduro was perpetuating his grip on the electoral system and preparing to run another rigged poll, the Court proceeded to hand control of two (and potentially three) leading opposition parties to minority factions willing to participate in the elections. Without steps by government, opposition and foreign allies of both sides to reach a broad political settlement that would include electoral reform, Venezuela is likely to end the year with its main opposition parties rendered impotent, its long-running conflict even more bitter and its population struggling through an increasingly desperate humanitarian emergency.

Another Chavista Power Play

The Venezuelan constitution stipulates that all members of the CNE should be independent. But in practice its new board will include three pro-government members (including two recruited from among Supreme Court justices), one member from a minority party not aligned with the mainstream opposition and one from a dissident faction of a mainstream party, Acción Democrática. All three pro-government members have previously been sanctioned, by the U.S. and Canada, for alleged involvement in human rights abuses and/or financial crimes.

Only 13 per cent of the electorate view Maduro favourably – a free and fair election could bring a crushing defeat.

In reaffirming its hold over the CNE, the Maduro government is moving to regain control of the National Assembly, in opposition hands since 2016 but hamstrung for the past five years by Supreme Court rulings that have rendered its decisions null and void. Amid an unprecedented economic collapse, which has forced over 5 million Venezuelans to flee abroad, and with polls revealing high levels of discontent with the government – the most reliable recent survey shows only 13 per cent of the electorate viewing Maduro favourably – a free and fair election could bring a crushing defeat. Fearing such a loss and an eventual exit from power, the chavista government has sought to control the electoral authority and discourage opposition voters from turning out.

But the president’s other major headache is that nearly 60 countries, including the U.S., numerous Latin American nations and the European Union’s member states, regard opposition leader Juan Guaidó, president of the National Assembly, and not Maduro, as the country’s rightful president. These states’ refusal to recognise Maduro followed his re-election in a 2018 vote that they viewed as a sham.

Stung by this international blacklisting of Maduro and by the Guaidó-led campaign to overthrow him that began in January last year and included a failed civil-military uprising months later, the government has probed various options for recovering its legitimacy. The return to the Assembly last September of government legislators who had boycotted it since 2017, and the subsequent formation of a bipartisan commission to appoint the CNE board, fuelled hopes that the government’s desire to restore its international standing might lead it to agree to improved electoral conditions as well as scale back its judicial persecution of the opposition. Crippling economic and financial sanctions imposed by the U.S., and the lack of a recognised parliament to approve foreign loans and other agreements, have added to its severe fiscal difficulties, which in theory constitute another powerful incentive to compromise.

Its quest for unassailable political control has trumped the case for pragmatism and normalisation.

The government has chosen otherwise, however. Its quest for unassailable political control has trumped the case for pragmatism and normalisation. It has implemented its strategy in several phases. First, on 5 January, pro-Maduro factions manoeuvred to oust Guaidó from the Assembly presidency, leaving parliament physically split in two. Although it still claims a majority, the opposition has since then been obliged to hold sessions away from the legislative building, sometimes even in the street. Then, while the commission to appoint the CNE was not dissolved, talks between government and opposition, who met on nineteen occasions, according to high-level chavistas, failed to reach agreement on the nominees. The 12 June decision by the Supreme Court to unilaterally appoint a new electoral council represents Act III.

A tragicomic episode in April, involving a landing by a ragged band of Venezuelan ex-soldiers and U.S. mercenaries who were soon rounded up, played into Maduro’s hands and reinforced hardliners in the government. Guaidó denied involvement but was forced to admit that his aides had set the ball rolling in early talks with the organisers before pulling out of the operation. The government prosecutor has since labelled Guaidó’s party (Voluntad Popular) a terrorist organisation, a move that could lead to its dissolution and the imprisonment of its leaders, many of whom are already in exile or under diplomatic protection at home.

Court Politics

The stakes surrounding the forthcoming legislative elections are high.

The stakes surrounding the forthcoming legislative elections are high. Guaidó’s claim to the interim presidency rests on a provision in the 1999 constitution that allows the head of the legislature to assume power temporarily in the absence of a president-elect. The opposition and its foreign allies regard Maduro’s 2018 re-election as invalid, and thus supported Guaidó’s claim to the interim presidency. But if the opposition loses control of the Assembly in December, as now seems all but inevitable, the constitutional position justifying the interim presidency becomes more tenuous, presenting foreign governments with an additional dilemma. Many diplomats with whom Crisis Group speaks regularly had been wondering for some time how they came to recognise a “government” that does not even have access to its own offices, let alone territorial control.

Three days after the Supreme Court ruling to appoint the new CNE, the same tribunal determined that control of the opposition party Acción Democrática and all its symbols and assets should pass to a dissident faction’s leader, Bernabé Gutiérrez – the brother of one of the new appointees to the electoral authority. This ruling was followed the next day by a comparable move against Primero Justicia, another of the so-called G4 group of four mainstream opposition parties, all of which had previously had their official registration suspended. On 17 June, a third member of the G4 bloc, Un Nuevo Tiempo, was threatened with a similar fate. The beneficiaries in each case are opposition figures who have chosen to play by the government’s rules.

Henri Falcón, a former chavista state governor who defied the rest of the opposition in 2018 by taking part in the presidential election, only to repudiate the result as the product of the government’s violations of electoral law, has criticised the Supreme Court’s interference in opposition parties’ internal affairs. But Falcón has chosen to play by the government’s rules and if – as seems likely – the mainstream parties boycott this election, too, he may well end up as de facto leader of the opposition. Of the eighteen opposition parties that contested the 2015 legislative elections, only his Avanzada Progresista has not had its registration revoked. As one prominent political commentator put it somewhat tartly, “the idea is not to change the government but to change the opposition”.

Meanwhile, the Supreme Court has also been busy modifying the electoral law. Arguing that the current system does not respect the constitutional requirement that collegiate bodies be elected under a system of proportional representation, the Court is demanding a large increase in the percentage of legislators elected on party lists rather than by name. It has also ordered an increase in the number parliamentary seats, from 167 to 200 or more, and a modification of the way in which MPs representing Venezuela’s indigenous communities are elected. Opposition critics fear that the government will use these modifications to skew the results in its own favour, as well as to ensure representation in parliament for any micro-party that agrees to conform to its demands.

What is To Be Done?

The opposition under Guaidó has yet to enunciate any clear strategy for dealing with the situation.

In the absence of a comprehensive political agreement between government and opposition, even a relatively competitive parliamentary election would make only a modest contribution to resolution of Venezuela’s political conflict, now two decades long. An unfair election, on the other hand, will certainly exacerbate the conflict by denying the mainstream opposition an institutional foothold in Venezuela, reducing the possibility of compromise between the sides and shutting off one of the last possible routes to peaceful political change. The opposition under Guaidó has yet to enunciate any clear strategy for dealing with the situation, beyond a reiteration of its belief that “maximum pressure” will topple Maduro and pave the way for a democratic transition. Guaidó and others have argued that a rigged election will leave the current National Assembly – or in practice the roughly 100 legislators loyal to the “interim presidency” – as the only legitimate parliament. In practice, that route would seem destined to lead to a “government-in-exile”, since all its members would be exposed to judicial persecution if they remained in Venezuela.

Despite the claims of some opposition politicians that the latest government moves are signs of desperation, the truth is that – despite its many difficulties – the Maduro government believes it has a perfect opportunity to put an end to the threat represented by Guaidó and forge a stable, internal political settlement on its own terms. It is counting on further opposition splits, as some calculate that electoral participation is the best route to personal and political survival, while others are more attracted to the relative safety of exile. One of the two non-government members of the new CNE, Rafael Simón Jiménez, has declared that the intention is to offer the kind of election conditions negotiated by government and opposition in a round of talks that took place in Santo Domingo in early 2018. That would mean lifting bans on opposition politicians and parties; so far, however, the government has been heading in the opposite direction. Even so, some carrots may be offered in order to foment splits in the G4.

On the international front there are signs of convergence among major actors.

On the international front there are signs of convergence among major actors. Concerted yet discreet pressure by a group of foreign powers, especially if it were to include Maduro’s allies Russia and Cuba and Guaidó’s backers in the U.S. and Colombia, might yet persuade the government to honour the new CNE’s offer of improved election conditions, and the opposition to reconsider its inclination to boycott the process. The prospects, however, appear extremely dim. True, government and opposition recently proved that they can reach a deal, striking an agreement on 2 June to unfreeze blocked Venezuelan state accounts to fund humanitarian aid, to be administered by the Pan American Health Organization and targeted at the COVID-19 response plan. But the latest government moves have dealt a severe blow to what little mutual trust that negotiation might have fostered.

A return to the negotiating table – the sole route to a stable and positive outcome – will happen only if those in government believe they are treated as legitimate office holders, people whose personal and political survival will be guaranteed in any transition. Equally, while contact between the two sides continues, it is incumbent on the government to demonstrate a clear commitment to good-faith negotiations if it wishes to regain its international standing. Its latest actions only serve to consolidate the widely held view on the opposition side that talking is fruitless.

The dismantling of Venezuelan democracy, which is now almost complete, was not a single event but a long, drawn-out process. Restoring institutions and the rule of law, likewise, is not going to occur overnight. Foreign governments should not encourage the formation of a government-in-exile, which would divorce the opposition leadership from the reality in Venezuela and make a settlement more difficult. Ultimately, opposition forces inside Venezuela will have to determine how they resolve their leadership issues. But the stratagem of the interim presidency, dubious to begin with, may need to be re-evaluated, or at least finessed. By purporting to run a “government” as opposed to a resistance movement, the opposition has arguably neglected the vital task of shoring up its domestic support in favour of reliance on external backers. Once Guaidó’s term as a legislator is formally over, on 5 January, recognition of his “government” may well begin to dwindle.

As well as exerting pressure on the Maduro government to offer better electoral conditions, and making it abundantly clear that they will not recognise a parliament that emerges from a rigged election, concerned outside parties such as the EU should focus on the medium-term outlook. That implies continued engagement, even under the most adverse circumstances, not least because the humanitarian emergency will deteriorate still further, with a strong possibility of famine in some regions, a surge in cases of COVID-19 that will overwhelm the precarious health service, and a likelihood that Venezuelans will continue their mass exodus (even though around 75,000 migrants and refugees have recently returned to their homeland as a result of Latin America’s severe pandemic lockdowns).

One initiative that would be worth consideration is a UN electoral evaluation mission – not to observe the December elections but to assess how the UN’s electoral division might contribute in the future to improving the electoral environment. But to make progress in this direction, the two sides will first need to acknowledge that an all-or-nothing political battle serves neither’s interests, and certainly not those of the Venezuelan people.