Venezuela: A Lost Opportunity to Restore Institutional Rule

The Venezuelan government has chosen to further centralise power prior to a crucial parliamentary election next year, rendering a peaceful, democratic solution to the country’s political crisis much more difficult. In filling the posts of ombudsman, attorney general and comptroller general, it has acted according to a legally suspect method. By battening the hatches in this way, the government of Nicolás Maduro will weaken its own legitimacy and that of the Venezuelan state itself.

The country’s 1999 constitution – introduced under Maduro’s predecessor and mentor, Hugo Chávez, who died in 2013 – provides for five autonomous branches of government. They are the executive, legislative, judicial, electoral and “moral” branches.

The executive has steadily extended its domination of the single-chamber National Assembly by the chavista majority, with much legislative authority transferred for long periods to the president. Following the last legislative elections, in 2010, the government lost its two-thirds majority in the assembly, which had enabled the government to appoint key officials without consulting the opposition. Having a smaller majority did not, however, push the government to compromise; rather it refused to seek consensus with the parliamentary opposition. One result was that, by 2014, many key official positions that required parliamentary ratification had long been left unfilled. When government and opposition opened talks in April 2014 this year – under the auspices of the Union of South American Nations (UNASUR) and the Vatican – this was one of the main issues discussed.

The positions needing to be filled immediately included ten (out of 30) Supreme Court justices. In addition, of the five principal members of the electoral authority (the Consejo Nacional Electoral, or CNE) board, the mandates of three expired on 28 April 2013. Also requiring renewal were the three members of the moral power – the attorney general, ombudsman and comptroller general – whose mandates expired in December 2014.

The law governing the Supreme Court allows justices to be appointed by simple legislative majority if, after three votes, a two-thirds majority is not obtained. The government, having selected a slate almost entirely composed of loyalists, chose this method over consensus with the main opposition group, known by its acronym, MUD (for Mesa de la Unidad Democrática). The MUD aspires to change such dynamics in 2015 by winning a majority in the assembly. But while the opinion polls are favourable to MUD, the government’s institutional control threatens a repeat of 2013, when a disputed presidential election brought violence and mutual recriminations.

The attorney general, ombudsman and comptroller were appointed by a simple majority after the government-controlled Supreme Court endorsed the government’s reinterpretation of the relevant article of the constitution, which most experts maintain clearly states that if there is no consensus the matter should be put to a popular vote.

In practice, this means that the attorney general’s office and the courts will continue to be used for politically inspired prosecutions of opposition leaders like Leopoldo López, held in solitary confinement in a military prison since last February, and independent legislator María Corina Machado, stripped of her parliamentary seat and charged with conspiracy to overthrow the government in a case that has received widespread international condemnation. A UN special rapporteur for human rights termed such cases arbitrary and lacking in due process. The new appointments mean that the date of the parliamentary elections and the rules under which they take place will be determined according to the government’s interests – after the recent appointments the electoral council remains 4-to-1 pro-government – and that any challenge to the results will likely be dismissed. And the state ombudsman will continue to defend the interests of the government against complaints from its detractors.

It is not impossible for Venezuela to pull back from the brink. This year’s elections will be a crucial test. But a golden opportunity for the government to chart a peaceful, constitutional course out of the crisis has been lost and the short-term consequences, in terms of violence and declining living standards, are likely to be severe. Having thus far failed to convince the Maduro government to negotiate with the opposition on these vital appointments, UNASUR and other international actors must urgently intervene before it is too late.

However, they will also have to be prepared to exert their influence – in a much more forceful way than before – to mitigate the consequences of these latest actions. The employment of unilateral sanctions, such as those recently approved by Washington, while likely to be counterproductive, reflects this failure and only underlines the need for stronger multilateral engagement.