Democracy within the Framework of the Inter-American Democratic Charter: the View from Academia and Civil Society (Spanish): http://www.idea.int/publications/democracy_within_the_framework/index.cfm

Published by: International IDEA, Asociación Civil Transparencia, the Carter Center and Unidad Andina para la Gobernabilidad Democrática, Embajada de Canadá.

Mirando a Canadá

(Ver versión en español traducido por Paolo Sosa, aquí:  http://www.politai.pe/) 

By Max Cameron

On September 11, 2011, Alejandro Toledo, the former president of Peru (2001-2006) held the “6th summit of ex-presidents” in Lima, which included Vicente Fox, Carlos Mesa, Nicolas Artido, Antonio Saca, Ernesto Samper, Fernando de la Rua, Hipolito Mejia, Martin Torrijos, Gustavo Noboa, Rodrigo Borja, Jaime Paz Zamora, Cesar Gaviria, Jose Aznar, and the Secretary General of the OAS, Jose Miguel Insulza. President Ollanta Humala opened the meeting and one of his first comments was about the need to democratize the summit with more ex-presidents. I think that may have been a subtle hint that the group needs to be a little more diverse. Lula sent a letter, but it would have been nice to have had Bachelet both for gender and ideological balance. Since Latin America has been swept by a red-tide, it is inevitable that a meeting of ex-presidents tends to tilt to the right. But then so did the audience.

Ollanta Humala gave a decent speech. He argued that democracy means that the voices of all must be channeled through the political process, without opinions being fragmented or excluded. He talked about how there are democratic deliberations in communities throughout the land, but whereas some groups have the power to translate their views into law, others can only influence politics through mobilization. I said Peru’s republic has always excluded the indigenous, the cholos, the slaves. Indeed, democracy did not come with the republic and independence. He also called for parties that are not identified with individual personalities and criticized the tendency to caudillismo in Peru, which I thought was rather interesting given his own personality-driven approach to politics. Finally, Humala spoke of the importance of creating a Peru in which people can live in communities where there is clean potable water, their kids can go to school, and people can enjoy a decent life.

From my perspective, the worst presentation by the ex-presidents was made by Aznar. He seemed to want to take Humala’s speech as somehow implying that all Peru needs is a more efficient state. There are no alternative models, only markets and democracy, and there cannot be two or more Latin Americas any more than there can be two Germanys.

Insulza argued for better monitoring of compliance with the Democratic Charter. Recognizing that states don’t like monitoring, he suggests that rather than a democracy rapporteur, there should be a peer review process. He argued for an increase in the capacity of the OAS to review situations in which democracy is at risk. Preventive action requires that the government in question requests OAS involvement. This hinders the capacity of the Secretary General. He said we should not reopen the democratic charter. Just look at ideological division of region, if you open the Charter it will all fall apart. But there is room for additional resolutions to strengthen it. We need, for example, a better definition to “serious ruptures.” These are not defined, but it is clear that in Quebec in 2001 the chiefs of state understood this to mean more than coups. It means intervention in other powers of the state – the dissolution of another branch – or massive fraud. Another example would be when states close all or most of the media. If these things are defined on a case-by-case they become politicized. Above all, unity of the region should be maintained.

Gaviria’s point was that the Democratic Charter has the same status as the OAS founding Charter. There are mechanisms to implement it. If countries don’t use them, that is because they don’t want to. If they want to act, they can; the Charter empowers them. That said, he felt that the power of the Secretary General should be reinforced.

Fox made a weird case for decriminalization of drugs. He said drugs should not be the last prohibition. We’ve legalized abortion, and gay marriage, but not drugs. Say, what?

Carlos Mesa noted that Latin America has a history of executives attacking legislatures and vice versa, but noted that it is hard for judges to destabilize democracy. Yet who defends the judiciary? If judges want an audience in OAS, the executive will be the first to block them.

Noboa harangued us about Correa concluded with the prediction that all forms of 21st Century Socialism are but steps toward totalitarianism. I was more impressed by Borja’s criticism of Correa: that he uses the rhetoric of socialism but has done little to implement socialist reforms. Instead, he has spent most of his time building up presidential powers.

My own intervention can be found in the previous post. Rather than reading the speech, however, I improvised a bit and threw in a few lines to pick up on previous interventions. In particular, I tried to reinforce Humala’s message about the importance of recognizing that there is no single model of democracy and that democracy means not just respecting a given democratic model but also the right to choose the form of government that the public wants. I suggested he did the right thing by swearing himself in on the 1979 rather than 1993 constitution, because it is valid to talk about the kind of constitution one wants. That was the point that generated the most controversy. That, and the suggestion the OAS should apologize to Chile for holding its General Assembly in Santiago in 1976 in the height of the military dictatorship. That is the other anniversary of this day: the coup in Chile was 38 years ago.

Here is the final declaration of the ex-presidents. “Constituir, en el marco del Centro Global para el Desarrollo y la Democracia, y como aporte de la Sociedad Civil, un mecanismo de observación y monitoreo de los avances y promoción de los principios establecidos en la Carta Democrática Interamericana de su aplicación y de alerta temprana en los casos de alteración de la institucionalidad democrática en los países de la Región, con la finalidad de coadyuvar a los esfuerzos que en ese mismo sentido realizan las organizaciones regionales y subregionales. El mecanismo tendrá una Secretaría Técnica encargada del desarrollo de mecanismos e indicadores que permitan la evaluación y el monitoreo. Con base a las recomendaciones de la Secretaría Técnica los Ex Presidentes se reunirán para deliberar y, en su caso, actuar en consecuencia.”

Sounds good. The challenge will be, as it is with the Charter itself, how to execute this mandate.

The following comments were prepared for presentation in the “VI Cumbre de Ex-Presidentes: Institucionalidad Democrática e Inclusión Social,” organized by the Centro Global para el Desarrollo y la Democracia, Hotel Country Club, San Isidro, Lima, September 11, 2011.

Executive Summary

The Strengths of the Charter are that it:
- defined democracy as a right;
- encompassed more subtle threats;
- made democracy a condition of OAS membership.
The Weaknesses of the Charter are that it:
- did not recognize multidimensionality of democracy;
- was vague on what counts as an interruption/alternation of the democratic order;
- has very weak enforcement mechanisms.
Recommendations for improvements include:
- clarification of the meaning of interruption/alternation of the democratic order;
- creation of a democracy traffic light;
- establishment of a democracy inspector.

Introduction: The Strengths of the Charter

The Inter-American Democratic Charter, adopted by the members of the Organization of American States on September 11, 2001, represented three major steps forward with respect to the defense and promotion of democracy in the Western Hemisphere.

First, it established representative democracy as a right, and it defined the elements of democracy broadly to include “free and fair elections,” a “pluralistic system of political parties,” and the “separation of powers and the independence of the branches of government.” The Charter also recognized the “right and responsibility of all citizens to participate in decision relating to their own development” as a condition for the “full and effective exercise of democracy.” Despite references to participation, however, and notwithstanding objections by Venezuela, democracy was defined as a representative regime.

Second, the Charter broadened the understanding of threats to a democracy to encompass the more subtle challenges that had confronted Peru and other Latin American countries in the 1990s. For this reason, the Charter refers to “situations” that may affect “the democratic political institutional process or the legitimate exercise of power” (Article 18). Under Alberto Fujimori, for example, Peru had experienced democratic backsliding without recourse to the kind of conventional military coup that policy makers had in mind when they wrote of “sudden or irregular” interruptions of democracy in Resolution 1080 in 1991.

Third, the Charter reworked the compromise between non-intervention and democracy that was already implicit in the 1948 OAS Charter. This meant not only that the entire Hemisphere accepted democracy as the basis of membership in the OAS, but also that the most powerful states in the system, including the US, could not sponsor or accept non-democratic regimes within the OAS. It is worth recalling that the 1976 OAS General Assembly was held in Chile at the height of the Pinochet dictatorship.

The Problems with the Charter

From the outset, the Charter had three problems.

First, the meaning of democracy grew more contested after the Charter was signed in 2001, especially after a wave of left-wing governments emerged in the context of crises of representative democracy. Since that time, Latin America has undergone considerable democratic experimentation. Most governments (across the ideological spectrum) continued to regard free and fair elections as the cornerstone of electoral democracy, but many failed to uphold basic constitutional rules. In particular, judicial independence has often been undermined. A number of governments have promoted direct participation in an effort to make democracy more meaningful, but often in ways that did not reinforce representative institutions. Since democracy is a multidimensional concept, it is possible for progress along one dimension to be accompanied by backsliding along another. The consensus around the key elements of representative democracy in 2001 gave way in the face of a more diverse array of models of democracy.

Second, the meaning of an “unconstitutional interruption of the democratic order or an unconstitutional alteration of the constitutional regime” (Article 20) was left undefined. Despite efforts—both by scholars and policymakers—to specify what this language means, confusion often arose over when countries were not in compliance with the Charter. Even more crucially, the ambiguous phrase was followed by a key qualifier: the interruption or alteration of democracy would only enable the OAS to act if it “seriously impairs the democratic order in a member state.” That, obviously, would be a matter for political judgment. Yet the last decade has seen the growth of tensions within the OAS with respect to the how to exercise such political judgment.

Third, the Charter had very weak enforcement mechanisms. As a political document, it depended on the will of the member states, and they typically did not like to criticize each other. Moreover, the Secretary General needs permission to send a mission to investigate abuses of democracy (see Article 18). But, of course, the abuses of democracy are most likely to occur due to the behavior of the governments and leaders in question. Another way of putting this is to say that the Charter has a bias in favor of the executive: legislatures and courts have no standing in the OAS, and hence no formal role to initiate the enforcement provisions of the Charter.

Recommendations to Reinforce the Charter

In order to more fully realize the Charter’s potential as an instrument for flexible and preventive diplomacy, it needs to be reinforced. These changes would not necessarily require formal amendments to the Charter. They could take the form of codicils or complementary efforts in at least three general directions.

While recognizing the diversity of democratic regimes, it is necessary to establish the minimum features beyond which no country can be considered democratic. This also involves more clarity on what counts as a coup, and what must be done when a constitutional order has non-democratic features. As a point of departure, the 8 points outlined by former US President Jimmy Carter in his 2005 speech to the OAS might be formally adopted on a voluntary basis as a codicil to the Charter.

Mr. Carter’s 8 points include: “1. Violation of the integrity of central institutions, including constitutional checks and balances providing for the separation of powers.

2. Holding of elections that do not meet minimal international standards. 

3. Failure to hold periodic elections or to respect electoral outcomes.

4. Systematic violation of basic freedoms, including freedom of expression, freedom of association, or respect for minority rights.

5. Unconstitutional termination of the tenure in office of any legally elected official.

6. Arbitrary or illegal, removal or interference in the appointment or deliberations of members of the judiciary or electoral bodies.

7. Interference by non-elected officials, such as military officers, in the jurisdiction of elected officials.

8. Systematic use of public office to silence, harass, or disrupt the normal and legal activities of members of the political opposition, the press, or civil society.”

Making assessments with respect to whether member states are in compliance with the Charter along the lines of Carter’s 8 points should be based on solid empirical evidence. The Inter-American system lacks robust monitoring and reporting on the state of democracy. Such reporting should be arms-length from both the OAS and member states, and should result in publicly accessible, peer-reviewed research. At the same time, the empirical research needs to be presented in a format that is useful for policymakers.

An effort to develop a mechanism for monitoring and reporting on the state of democracy in the Andean region was undertaken by a group of scholars under the aegis of the Centre for the Study of Democratic Institutions at the University of British Columbia, the Andean Commission of Jurists, International IDEA, and the Carter Center. Together, these groups created the Andean Democracy Research Network and commissioned a series of studies on the state of democracy in the Andean region. Over 20 scholars were involved from six countries. These studies adopted a common methodological template which examined not only the electoral and constitutional features of democracy, but also the issues of citizenship and participation that have become central to the debates on the quality of democracy over the past decade.

Monitoring would be most useful if it were to highlight those situations in which a member state is at risk of serious impairment of democracy. A “democracy traffic light” could usefully identify the political regimes in which such risks exist. Member states in good standing would be given a green light. There is one country in the Western Hemisphere that is unequivocally non-democratic, and which would be given a red light (Cuba). But there are a number of other regimes that have both democratic and authoritarian features. If the authoritarian features are sufficiently strong this may indicate the impossibility of holding elections that can be considered to be free and fair by the international community. Such regimes exist in a zone of indeterminacy between democracy and authoritarianism, and would be given a yellow light.

A yellow light would indicate the need for collective deliberations by OAS member states. Ideally, this would trigger the Chapter IV provisions of the Charter. Since this does not occur due to the Charter’s “Catch-22,” alternative institutional mechanisms are needed. For example, the Inter-American system could create a “democracy inspector.” The work of the democracy inspector would be similar to the Truth and Reconciliation Commission in Honduras. A less ambitious version of the same idea would be a peer review mechanism. This might begin with the development of a compendium of best practices in democratic governance, an idea proposed by the Canadian government in the most recent General Assembly of the OAS.

Conclusion

The Democratic Charter is a work in progress. It represents an advance over previous instruments and has the potential to be use in proactive and preventive ways to reinforce democracy in the Western Hemisphere. At the same time, it is a flawed document that has a number of loopholes and vague provisions that need to be tightened and more sharply defined. Much of this can be done without amending the Charter, but it demands leadership with vision and energy, both inside and outside the OAS.

Download PDF here.

Congratulations to Rafael Roncagliolo, a founding member of the Andean Democracy Research Network, who has been appointed Minister of Foreign Affairs in Peru.

For the full story, and source of the photo, see “New Peruvian Cabinet takes office today,” in ANDINA – Peru News Agency.

As we all know, peace and security are ultimately founded on respect for democratic principles and human rights. We have collectively enshrined these principles in the Inter-American Democratic Charter, a landmark achievement that will celebrate its 10th anniversary later this year.

The Inter-American Democratic Charter remains a fundamental point of reference that guides our collective efforts in strengthening democratic governance in the hemisphere. Canada is pleased that this year’s resolution on supporting the promotion of democracy in the hemisphere calls for dialogue to continue strengthening the implementation of the tenets of this key document, recognizing the important contributions that civil society organizations can make to this process.

While there is wide acceptance among our member states on the need for democracy as an expression of political will, Canada would like to see a focus in discussions going forward on the practice of democracy. By “practice of democracy,” I am referring to the day-to-day functions of our governments as well as the way in which our institutions interact with citizens.

For Canada, this includes elements such as the balance of power between public institutions, freedom of expression, a vibrant civil society, respect for minority rights and minority views, the existence of a free media and respect for a loyal political opposition.

You will understand that as a parliamentarian, I am very sensitive to the role of elected officials and of civil society in a healthy and vibrant democracy.

Canada believes that an open debate on the practice of democracy would be healthy for democracy in the Americas. As a starting point, we should share our experiences in the practice of democracy. Canada suggests that member states consider the creation of a compendium of good practices where we could review and exchange information on what each member considers its national contributions to democratic practices.

We believe that all countries in the hemisphere, including Canada, stand to benefit from a formal exchange and dialogue on best practices related to democratic governance. It is our hope that such a process would also lead toward strengthening the implementation of the Democratic Charter.

Despite advances in democracy over the past couple of decades, political crises still threaten stability in the region. The coup d’état in Honduras two years ago was not only a major step backward for Honduras, it also threatened the democratic gains we have collectively made in the region.

However, Honduras is well on the path to recovery, with a democratically elected government and a truth and reconciliation commission that has played a critical role in the process of national reconciliation. Despite the fact that President [Porfirio] Lobo has faced tremendous challenges as a result of the 2009 crisis, he has responded constructively to the concerns of both domestic and international actors.

Canada was therefore very pleased to welcome Honduras back to the OAS at the Special General Assembly held last week in Washington, D.C. The reintegration of Honduras into the OAS allows us to benefit from the important contribution that Honduras has to make to this organization and to focus on the other significant hemispheric challenges that warrant our full attention.

Vote-splitting and bitter memories of Alberto Fujimori handed the left a victory.

The Mark, 8 June 2011.

By Max Cameron and Fabiola Bazo

What can explain the election of a leftist, nationalist, anti-system candidate in a country that has experienced extraordinary rates of economic growth and significant poverty reduction for the better part of the past decade?

In the first place, the explanation lies in the failure of centre-right candidates in Peru to co-ordinate their strategies around a single leader. Had the democratic right not split its vote between former president Alejandro Toledo (2001-2006) and his erstwhile premier and finance minister Pedro Pablo Kuczynski, the outcome might well have been a pro-system, free market-oriented president with a strong mandate.

In a run-off, Toledo would probably have won handily over either victor Ollanta Humala or Keiko Fujimori. In technical terms, he was the Condorcet winner.

The division of the centre-right in the first round, on April 10, opened the door to a run-off between extremists on June 5. Logically, they had to compete for votes in the centre. Humala moderated his image, abandoning Bolivarian rhetoric from his earlier campaign in 2006, and instead posturing as an apostle of the highly successful former president of Brazil, Luiz Inácio Lula da Silva.

The conversion to moderation and democratic respectability was difficult to sell. Many voters remembered that Humala led a military uprising in 2000, in the dying days of the Alberto Fujimori government, and later offered rhetorical support to an ill-conceived rebellion in Andahuaylas led by his brother, Antauro, in 2005. His own record in combat as a soldier in the 1990s suggested possible human-rights abuses.

But Humala’s competition had to make an equally difficult sales pitch. Keiko Fujimori tried to shake charges that she only sought power in order to free her father, Alberto, who is currently serving a 25-year prison term for human-rights crimes and corruption during his term in office, from 1990 to 2000.

She claimed, unpersuasively, that she would not pardon her father; worse still, her campaign elicited memories of her father’s autocratic and corrupt style, and her entourage included many faces from his government. She handed out food in exchange for support, and ostensibly allowed campaign operations to be run out of her father’s prison compound.

There were rumours that Alan Garcia, the sitting president, was placing intelligence operations at her service, as he had in 1990 when Alberto Fujimori was first elected. In the final days of the campaign, a telemarketer, posing as part of Humala’s campaign, spread rumors that Humala would expel Chileans from Peru, mistreat investors, or was being promoted by Venezuelan President Hugo Chávez.

As the election date drew near, there were multitudinous protests against Keiko Fujimori that reminded Peruvians about human-rights abuses – including massive programs of sterilization of women without their consent – during her father’s reign.

In the end, the outcome of the election was a replay of 2006, except that Humala narrowly won rather than lost. As before, he won by a considerable margin in rural areas, especially the southern highlands, where Peru’s indigenous and peasant voters expressed, yet again, their desire for change. He fought hard to win votes in Lima and the coast, where prosperity has trickled down more rapidly, but was outpolled by Fujimori by a margin of 3 to 2.

For some observers, the idea of a Humala victory in 2011 was inconceivable. It was thought that if he lost in 2006, surely he would win even fewer votes this time around after another five years of growth. It was precisely this overconfidence that led the centre-right to fail to unify behind a single candidate with broad appeal. Moreover, after five years of growth, prosperity remained unequally distributed and heavily concentrated in Lima and the coast.

For years, social scientists have insisted that Peru’s democracy needs strong political parties, and its open economy, export-driven model must be more inclusive. These pleas have all too often been met with complacent yawns and smug rebuffs. “Peru has never had strong parties,” said some. “Modernity can be achieved through growth first; prosperity will trickle down over time,” said others.

As a result, Peruvians have managed to elect an anti-system candidate who has no real party organization, 46 seats in a 130-seat legislature, and a very weak mandate from the people. He will govern in a climate of hostility from the media, business, and much of the political establishment. Yet he has created expectations among his followers and he will have to deliver results.

Humala would do well to follow the model of Lula, as he has promised. He should provide reassurances to investors. This does not preclude mutually agreeable renegotiation of contracts; indeed, several contracts negotiated in the 1990s are soon due to expire and have to be renewed. He should also focus much of his energy on poverty alleviation in the areas most neglected by previous administrations.

He should make political reforms a top priority, but not with a wholesale rewriting of the constitution. The most pressing reforms don’t require constitutional change; they demand a vigorous modernization of Peru’s corrupt and inefficient judiciary and penal system.

Humala should root out malfeasance in public administration wherever possible. Drug trafficking has become a major problem in Peru, and it has started to penetrate the highest levels of power.

Finally, Humala can put Peru in step with the rest of the Andean sub-region by adopting new participatory innovations – referenda and recall, citizen initiatives, community councils, policy consultations. Participatory budgeting is already being practised in municipalities throughout Peru. Consultations with indigenous people should be used routinely to address resource extraction on ancestral lands.

All this can be done within the framework of Peru’s democracy, while fully respecting basic constitutional precepts and the rule of law. The real question, however, may be whether Humala can deliver the goods.

Photo courtesy of Reuters.

The Government of Canada’s Department of Foreign Affairs and International Trade website highlights the contribution of the ADRN: “Canada supported the development of the Andean Democracy Research Network which produces timely, impartial and high-quality assessments of democracy in the Andean region. The network also provides a forum to analyze and debate ways to strengthen the implementation of the Inter-American Democratic Charter.” Versión en español aquí.

This past Sunday, Peruvian voters selected Ollanta Humala (under the banner of Gana Perú) and Keiko Fujimori (Fuerza 2011) to enter a second round of voting, or ballotage. Voters chose between 10 candidates for the presidency, and from 13 congressional slates. Definitive parliamentary results will not be known for days (or weeks), but it appears that Gana Perú and Fuerza 2011 will obtain the largest number of seats in Congress, followed by Alejandro Toledo’s Perú Posible. The runoff will be held on Sunday, June 5.

Read more in The Mark

Photo: Reuters, Mariana Bazo.