Monthly Archives: May 2019

Kyrgyzstan Weakens Legal and Social Guarantees for Ex-Presidents amid Continuing Confrontation Between the Current and Former President

My previous post for this blog illustrated that approximately half of the post-Soviet states modeled their laws on immunity for ex-presidents on Russian legislation, which was put in place at the very end of 1999 when Boris Yeltsin transferred power to Vladimir Putin.[1]  In some cases, post-communist states copied provisions from the Russian Federation law word-for-word, a phenomenon known as diffusion by imitation.  In an important related study, whose results were just announced, Edward Lemon has discovered that “[a] whopping 79% of Kyrgyzstan’s and 56% of Tajikistan’s laws [on extremism] are identical to the Russian law (compared with 4% for Kazakhstan, 5% for Uzbekistan).”[2]  As Lemon’s work suggests, given the availability of software that makes it easy to do textual comparison, we are in a position to rigorously test the extent to which the Russian Federation has managed to shape the “legal space” in the Soviet successor states, especially in those countries that lie within what President Medvedev referred to in 2008 as Russia’s sphere of privileged interests.  

Comparing legislative practice allows us to assess not only the extent of policy diffusion but also the robustness of Soviet-era legacies.  My last post noted that Moscow’s role as law-giver was reminiscent of traditions from the Soviet-era, when a model law developed in the center served as a template for legislation in the 15 union republics.  When asked this month to justify Kyrgyzstan’s “plagiarizing” of Russia’s laws on extremism, Karima Amankulova, a spokeswoman for Kyrgyzstan’s Ministry of Internal Affairs, offered the following explanation.

“What some call plagiarism, others would label the unification of legislation.  The member states of the Commonwealth of Independent States develop model legislation and then countries may decide which norms they wish to implement [adopt as legislation].”[3]

Given Russia’s political prominence in the region and the depth of its technical expertise in legislative drafting, there is little doubt that Moscow still takes the lead in shaping model legislation.  The power of legacies and diffusion has its limits, however.  In the case of Kyrgyzstan, last year’s dramatic falling out between former President Almazbek Atambaev and his designated successor, Sooronbai Jeenbekov, led those in power in Kyrgyzstan to embrace some Russian-inspired norms on protections for ex-presidents while advancing others that diverge from the model established in Moscow. 

Following the arrest last year of Atambaev loyalists and calls for the prosecution of Atambaev himself—in part for his alleged involvement in fraudulent activities associated with the renovation of Bishkek’s heat and power generating plant—opponents of the former president launched efforts to strip all Kyrgyzstani ex-presidents of immunity from prosecution.[4]  These efforts took the form of parallel assaults in judicial and legislative institutions on the protections enjoyed by ex-presidents.  A lawsuit filed in the Supreme Court’s Constitutional Chamber resulted in an October 2018 decision that invalidated what the court concluded was a blanket immunity granted to former presidents.[5]  The court accepted the need for limited immunity as a means of protecting ex-presidents from baseless investigations, and at the same time it insisted that any procedures put in place to overcome immunity guarantees for ex-presidents “should be no less complex than those employed in impeachment proceedings for a sitting president…”[6]  The Constitutional Chamber also took the highly unusual step of instructing the country’s Minister of Justice and parliament to enact a corresponding statute.[7]   

Prior to the issuance of the Constitutional Chamber’s decision, a group of parliamentary deputies had submitted a bill removing all protections from criminal prosecution for former presidents.[8]   In the view of these deputies, as well as the complainant in the case before the Constitutional Chamber, ex-presidents should be on the same legal footing as ordinary citizens.  This bill passed its first reading in December 2018, but amendments adopted during the second reading introduced two critical changes to the legislation.  The first, which accords with the language of the Constitutional Chamber ruling, permits the removal of immunity from criminal prosecution for ex-presidents only if (1) the Procurator-General issues an accusation of wrongdoing [obvinenie] in connection with the commission of a grave crime [tiazhkoe prestuplenie] and (2) the parliament votes to strip the former president of immunity by a two-thirds majority.[9] These provisions brought the Kyrgyzstani law into close conformity with Russian legislation on the subject.[10]     

The second revision, however, departed decisively from Russian practice.  It denied ex-presidents the traditional package of publicly-funded social and financial benefits, including medical care, housing, a salary, and free transportation, if he or she chose to remain active in politics or return to government service.  In other words, the revised legislation sought to encourage future ex-presidents to pursue the kind of quiet, apolitical retirement that President Atambaev claimed he would enjoy upon leaving the presidency.

On April 4, 2019, Kyrgyzstan’s 120-member parliament passed the law with the above revisions by a vote of 111 to 4.  Among the four no votes were sponsors of the legislation, for whom the amendments introduced in the second reading afforded legal protections for ex-presidents that they believed were excessively generous.   Notwithstanding the misgivings of these deputies, President Jeenbekov signed the bill into law on May 16, and in so doing limited the protections that he himself would enjoy on leaving office in 2023, at the end of his single, six-year term.[11] 

Numerous commentators have argued that because the Kyrgyzstani Constitution prohibits the application of laws retroactively if they impose new obligations or additional responsibility [otiagchaiushchaia otvetstvennost’] on citizens, the first ex-president to whom the new legislation would apply is the incumbent, President Jeenbekov.  In this reading, former presidents Otunbaeva and Atambaev would continue to enjoy the full range of protections from criminal investigation and prosecution contained in the laws in force when they left the presidency.[12]  However, in an effort to extend the reach of the law to Otunbaeva and Atambaev, deputies included a provision in the legislation which insisted that the new rules would apply to any actions committed by a president since 2007—a provision that will surely provoke a challenge in the Constitutional Chamber.[13] 

By weakening immunity from prosecution for ex-presidents, Kyrgyzstan has not only aligned itself more tightly with the Russian model on criminal responsibility for former leaders, it has also moved the country closer to the norms championed by Western-oriented organizations such as the Venice Convention of the Council of Europe and the OECD.  Both of these organizations have advised post-communist countries against introducing broadly-worded immunity for politicians because it encourages corruption.[14]  Paradoxically, one of the most robust defenses of the values espoused by the Venice Convention and the OECD was made by Almazbek Atambaev in 2011.  In his words:

“It’s going to be hard to establish order in Kyrgyzstan unless we can show that there aren’t untouchables, and there will no longer be untouchables in Kyrgyzstan.  And that includes the president himself.  If I’m somehow involved in something I am prepared to be held to account.  I don’t need any immunity.”[15]

Former President Atambaev may be rueing these words today.     

In closing, it’s worth repeating that the leverage and linkages enjoyed by centers of geopolitical power have their limits as explanations of policy diffusion.  The recent legislative changes regarding immunity for ex-presidents in Kyrgyzstan appear to draw their primary inspiration not from Moscow or Paris or Washington but from mundane maneuvers in a domestic political game, a game in which a sitting president and his allies have been under assault for more than a year by a former president who is also their erstwhile patron.  If there is one broader lesson to be taken from the specifics of the Kyrgyzstani case, it is that protections for ex-presidents are only viable when former leaders observe reasonable political restraint in their presidential afterlife. 


[1] “Post-Communist Countries: Policy Diffusion relating to Immunity from Prosecution for Ex-Presidents.”  http://presidential-power.com/?p=9483

[2] https://twitter.com/EdwardLemon3/status/1125427216739966983

[3] AzattyqTV, May 9, 2019, at 9:20 mark.  https://rus.azattyq.org/a/nastoyaschee-vremya-azia-8-maya/29930014.html

[4] The investigation into wrongdoing in the repair of the power plant appeared to trigger the initiatives for stripping Atambaev and all ex-presidents of immunity, though Atambaev has been subject to calls for his prosecution for numerous scandals dating to his time in office, including the release of a powerful ethnic Chechen criminal kingpin, Aziz Batukaev. 

[5] Whereas sitting presidents are subject to impeachment in Kyrgyzstan, ex-presidents are not, and therefore because they were immune from both judicial and legislative responsibility, former presidents have arguably been in a more impregnable legal position than presidents.  In this regard, Kyrgyzstan has for some time differed from Russia, where, as noted below, ex-presidents have been subject to prosecution if certain procedural hurdles are overcome.

[6] Reshenie Konstitutsionnoi palaty Verkhovnogo Suda Kyrgyzskoi Respubliki, 3 oktiabria 2018 goda 06-r.  http://cbd.minjust.gov.kg/act/preview/ru-ru/9748/10?mode=tekst

[7] Some deputies insisted that the Constitutional Chamber exceeded its authority in giving these instructions to executive and legislative institutions.  See, for example, Bakyt Asanov, “Neprikosnovennost’ eks-prezidenta.  Chem reshenie suda vozmutilo ZhK,” Radio Azattyk, April 10, 2019.  https://rus.azattyk.org/a/kyrgyzstan-ex-president-parliament/29664302.html

[8] The bill was in fact a set of revisions to The Law on the Activity of the President, O garantiiakh deiatel’nosti Prezidenta Kyrgyzskoi respubliki, ot 18 iiulia 2003 no. 152.  http://cbd.minjust.gov.kg/act/view/ru-ru/1278

[9] Zhazgul’ Egemberdieva, “’Instrument protiv Atambaeva.’ Kak budet rabotat’ zakon o lishenii eks-prezidenta Kyrgyzstana neprikosnovennosti,” Nastoiashchee vremia, April 5, 2019. https://www.currenttime.tv/a/ex-president-kyrgyzstan/29863858.html

[10] In the Russian case, criminal cases against ex-presidents are initiated by the Head of the Criminal Investigative Commission rather than the Procurator-General, and only a majority of votes in each of the country’s two legislative chambers is needed rather than two-thirds approval.

[11] The Kyrgyzstani Constitution gives presidents 30 days to sign a law once it has been transmitted from the legislature.  For reasons that are unclear, in recent months President Jeenbekov has taken from 20 to 27 days to give his assent to legislation; in this case, he signed the bill into law on the 29th day. 

[12] Ekaterina Ulitina, “Podpishet li Zheenbekov zakon o lishenii eks-prezidentov neprikosnovennosti?” Vechernyi Bishkek, April 5, 2019.  https://www.vb.kg/doc/377646_podpishet_li_jeenbekov_zakon_o_lishenii_eks_prezidentov_neprikosnovennosti.html; Aidai Erkebaeva, “Pochemu lishenie neprikosnovennosti eks-prezidentov ne pomozhet privlech’ Atambaeva k otvetstvennosti,” Kloop, May 23, 2018.  https://kloop.kg/blog/2018/05/23/pochemu-lishenie-neprikosnovennosti-eks-prezidentov-ne-pomozhet-privlech-atambaeva-k-otvetstvennosti/  Among those disagreeing with this interpretation is the current head of Kyrgyzstan’s Security Council, Damir Sagynbaev, who insists that if Atambaev lost immunity he could be brought to justice.  According to Sagynbaev, “If there’s evidence, we’ll open a case.”  “Na Atambaeva mogut vozbudit’ delo, esli ego lishat immuniteta,–Sovbez,” Sputnik, 7 February 2019.  https://ru.sputnik.kg/politics/20190207/1043226413/atambaev-delo-immunitet-sovbez.html  

[13] Emil’ Sultanaliev, “Parlament okonchatel’no odobril zakonoproekt o sniatii neprikosnovennosti s eks-prezidenta,” Kloop, April 4, 2019.  https://kloop.kg/blog/2019/04/04/parlament-okonchatelno-odobril-zakonoproekt-o-snyatii-neprikosnovennosti-s-eks-prezidenta/ Curiously, although the Constitution in place before 2007 granted immunity to presidents, since that time immunity provisions have only appeared in the Law on the Activity of the President and not in the Constitution itself. Adding an additional wrinkle to the uncertainty about the impact of the new law are revisions to the country’s Criminal Procedure Code (CPC) that came into effect in January of this year.  Article 478, paragraph 4 of the amended CPC, which was adopted well before the Constitutional Chamber decision or the new law on immunity, places the decision on bringing an ex-president to justice in the hands of the country’s Procurator-General.

[14] Kyrgyzstan (Promezhutochnyi doklad) [March 2019], Chetvertyj raund monitoring Stambul’skogo plana deistvii po bor’be s korruptsiei.  OECD,  Set’ po bor’be s korruptsiei dlia Vostochnoi Evropy I Tsentral’noi Azii.  www.oecd.org/corruption/acn ; Zakliuchenie po proektu Konstitutsii Kyrgyzskoji Respubliki, Zakliuchenie No 582/2010, 8 iiuniia 2010 g.  Evropeiskaia komissiia za demokratiiu cherez pravo (Venetsianskaia komissiia).  https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2010)015-rus

[15] Kubanychbek Zholdoshev, “Nuzhna li eks-prezidentam neprikosnovennost’?” Radio Azattyk, March 1, 2019.  https://rus.azattyk.org/a/kyrgyzstan-pravo-neprikosnovennost-ex-prezidentov/29184972.html  Iskhak Masaliev, a sponsor of the 2018 bill amending the immunity provisions, noted that there were efforts from 2011 to 2014 to strip ex-presidents of immunity from prosecution, but none was successful.  Kybanychbek Zholdoshev, “100 golosov ‘za’. Kogo iz eks-prezidentov mogut lishit’ neprikosnovennost’,” Radio Azattyk, December 14, 2018. https://rus.azattyk.org/a/kyrgyzstan_ex-president_neprikosnovennost/29655573.html  Curiously, although the Constitution in place before 2007 granted immunity to presidents, since that time immunity provisions have only appeared in the Law on the Activity of the President and not in the Constitution itself.

Negotiations continue on what will replace the al-Bashir regime in Sudan

In the end, the fall of Sudan’s president Omar al-Bashir seemed to come quickly, with rumours circulating on the morning of 11th April that a debate was underway within the state security services and the military about how it would be handled – and who would replace him. He was gone by that evening, after almost 30 years in power. But the dramatic events came after months of protests, which began in December over food price increases and quickly turned into a demand for his regime to go. They continued despite a harsh crackdown in which scores of demonstrators were shot dead by state forces, including medics. It is hard to overstate the importance of these events, even though it’s not yet certain that fundamental and lasting change will happen, or whether some factions in the security forces will manage to hold on to the real power.

The background to the demonstrations is explained in a previous blog post on this site, and the regime itself is also analysed here. The organisers remained relatively united and channelled the anger felt by many ordinary people. At a certain point, it seems that many lost their fear of the regime, felt that there was a realistic chance of change, or were simply prepared to risk sacrificing their lives. Eventually a demonstration outside the national military headquarters in Khartoum on 6th April became a round-the-clock affair, and then a remarkable thing happened: soldiers were seen on the streets supporting the protesters. The various elements and ranks of state security apparatus, which Omar al-Bashir had managed so skilfully over the years, were clearly at odds with each other. On a number of occasions, soldiers returned fire on units of the state security which turned up and shot at the protesters. Several soldiers lost their lives. The future of the country was no longer being decided on the streets, but now also through a struggle within the security services.

On 11th April, it was clear that a coup had taken place. Later in the day the country’s First Vice President, Lt Gen Ahmed Awad Ibn Auf, announced that he was in control. The constitution was suspended and there would be a two-year transition period. However the protesters outside the headquarter in Khartoum remained determined, knowing that Auf was not only the defence minister but also a key figure in the old regime. He was replaced the following evening by another military officer, Lt Gen Abdel Fattah Abdelrahman Burhan, who is seen as more open to the protesters’ demands, and had in fact met with them in the previous days. There were scenes of joy, as soldiers and demonstrators mingled outside the headquarters.

Transition process underway

Power is currently held by the Transitional Military Council, under al-Burhan, while negotiations on a transition continue with an alliance of opposition groups. These talks were continuing as this piece went online. The opposition is grouped under an umbrella body, the alliance of the “Declaration of Freedom and Change”. Agreement apparently reached so far included a three-year transition period, with a parliament whose 300 members would be appointed rather than directly elected. Two thirds of the members would come from the Freedom and Change group. A cabinet of technocrats would be nominated by the opposition groups, however a “Sovereignty Council” would also have real powers, and be made up of both military and civilian representatives.

As a sign of ongoing tensions within elements of former regime as the talks continued, protesters continuing the sit-in outside the military headquarters were attacked on 13th May by unidentified elements wearing uniforms of one of the state security services. Five civilians and one army officer were killed. The Council later announced the arrest of those responsible, who it described as infiltrators. Meanwhile, the Popular Congress Party, which held power under al-Bashir, is unhappy with the power-sharing arrangements, in which they would apparently have little say.

There is some international pressure on the Transitional Military Council to finalise a handover of power, from the African Union (AU), the Intergovernmental Authority on Development (IGAD), and the EU. The AU’s Peace and Security Council called at the end of April for the transition to civilian rule to be completed within 60 days. However both Saudi Arabia and the United Arab Emirates have supported the Council, with an offer of $3 billion in budget support and aid.

The fate of the detained former President al-Bashir is a key question for whatever political order replaces his authoritarian regime. An indictment for genocide and other crimes in Darfur still hangs over him, despite which he managed to travel internationally as president without any attempt to arrest him. His fate is more likely to be decided within Sudan, however, although it is far from certain what will happen. Having been held initially in what the military called a “safe place”, he was later moved to the notorious Kobar prison in Khartoum, where so political opponents suffered at the hands of his regime. He has now been charged in relation to the deaths of protesters during the four months of demonstrations since December which ended his 30-year rule.

The resilience of different elements of the former regime is not to be underestimated – but neither is the determination, capacity, and resourcefulness of the civil groups staging these protests, along with a well-educated and mobilised diaspora. Whoever is control, the severe economic problems facing Sudan which prompted the protests last December, along with the civil war in neighbouring South Sudan, will be a significant challenge. But it is clear that things will never be quite the same.

The Philippines – The Stakes for Mid-term Elections 2019

Mid-term elections in the Philippines were held May 13, 2019. Voter turnout is estimated at 72 percent of the 63.6 million eligible voters in the country. Final results have yet to be announced. Initial results show four of the 12 Senate seats going to candidates from the President’s Pilipino-Lakas ng Bayan (PDP-Laban) party, but others affiliated with the President may mean majority support of the Senate for the President. The stakes are high: the lack of democratic checks and balances in the country may mean further setbacks to human rights, civil liberties, and political developments in the country. I discuss the elections and what the results may mean for the Philippines in the following.

The election season officially kicked off with campaigning for senate seats and party-list representatives on February 12, 2019. Presidential elections are held every six years in the country; midterm elections, then, see half of the 24-member Senate seats contested every three years in nation-wide elections, while the entire House of Representatives is up for elections. In 2018, 291 total Congressional members are listed in the House of Representatives, so that the 2019 elections will see 243 directly elected seats and 59 party-list seats. All 81 provinces will elect their respective governors, vice-governors, and provincial board members, as will the 1634 cities and municipalities, where mayors, vice-mayors, and 13,540 city and municipality councillors will be put into office following election day. While mid-term elections generally see lower turnouts, the Commission on Elections (Comelec) expected a record turnout of 63 million voters, a 5 percent increase from the 58 million in the 2016 general elections, based on voter registration, and this has come to pass. President Duterte entered office pledging to implement several controversial policies, including reimposing the death penalty, a literal drug-war, and constitutional change. It is, therefore, useful to consider key issues at stake with the President’s agenda, namely, human rights and civil liberties, and democratic checks and balances.

President Duterte’s Partido Demokratikong Pilipino-Lakas ng Bayan (PDP-Laban) successfully elected only three representatives into the House of Representatives in general elections 2016. However, in the weeks following elections, Congressional members either jumped ship to join the President-elect’s PDP-Laban, or aligned themselves with the President, so that the President has enjoyed a super-majority in Congress since the beginning of his tenure. With a supermajority in Congress and high approval ratings, only the Senate and the judiciary may stand in the way of the President’s agenda. Thus far, the House has been true to form in advocating the President’s agenda: for instance, the House passed a legislation to bring back the death penalty in March, 2017; it even developed a draft of constitutional changes to push forward the President’s constitutional agenda that passed a second reading in December 2018. Meanwhile, the Supreme Court has failed to check against the president: for instance, despite four separate petitions challenging the constitutionality of the extension of military rule in Mindanao, the Supreme Court ruled in favour of the President’s imposition of martial law on the island. Perhaps more egregiously, Supreme Court Justices voted in May 2018 to oust its Chief Justice Maria Lourdes Sereno, a vocal critic of the President, following the President’s campaign against the Chief Justice; by an 8-6 vote, Chief Justice Sereno’s appointment was invalidated.

This leaves the Senate as the remaining institution to check the President’s agenda and how his use of executive powers to pursue it, including his push for constitutional changes. Thus far, the Senate has done so: it has not passed legislation relating to the death penalty, and has also refused to consider the House’s version of constitutional changes. Indeed, the Senate launched an investigation into the President’s war on drugs. However, senate critics of the President – like other critics of the President – have been persecuted. For instance, President Duterte charged Senator Leila de Lima – who was then chairing an investigation into vigilante drug killings – with links to drug lords; the senator has been detained since February 2017. In September 2018, another staunch critic of the President’s drug war, Senator Antonio Trillanes, was arrested following the President’s order and revocation of an amnesty that the senator received in 2011. The senator remains free on bail but the perils of being a critic of President Duterte are unambiguous.

Much, then, is at stake, not the least of which seems to be the remaining vestige of democratic accountability in the country. The Presidency in the Philippines is term-limited to one six-year term; if constitutional change progresses in line with President Duterte’s agenda, he may be able to extend his stay in office. The President has repeatedly disavowed any intention to do so, to motivate support for the constitutional change. Still, the different drafts of the constitutional changes contain provisions that are considered highly controversial, which would expand Duterte’s powers even if he did not inhabit the office of the President.[i]

Results are expected for city and municipal elective offices within three days of elections, between May 13 to May 16, 2019, while the results for the higher offices are expected to be announced between May 17-19, 2019. Undoubtedly, many will be watching these results intently.


[i] Yap, O. Fiona. November 9, 2018. “The Philippines – The Road (Blocks) to Constitutional Changes”

Ukraine – Volodymyr Zelenskiy wins the presidency

On April 21, Ukraine held the second round of the presidential election. Volodymyr Zelenskiy won the election with 73.22% of the vote securing an overwhelming victory across almost all (but one) regions in the country. A preliminary assessment of the election observers declared the election “genuinely competitive” with voting, counting, and tabulation conducted in accordance with Ukrainian legislation, which is a significant achievement.

The incumbent president graciously accepted defeat and congratulated the winner. However, Poroshenko also announced his intention to stay in politics: “I am leaving office, but I want to make it clear that I am not leaving politics,” he wrote on Twitter.  What is ahead for the former President? This may depend on the outcome of the parliamentary elections in the end of this year and particularly the success of his party, Bloc Petro Poroshenko.

Given that Ukraine is a parliamentary-presidential system, the upcoming parliamentary elections will be even more important for the president-elect. In particular, this ability to form a large, stable coalition in the new legislature will be crucial.  Failure to do so can jeopardize his reform agenda and his ability to govern effectively.

That said, the president-elect sounded committed in the aftermath of his victory, announcing “I promise I won’t mess up” and “I will not let you down.” These are the promises he will need to keep as the Ukrainian voters have shown for the past decade that they do not take broken promises lightly. Given that not much is known about his policies and plans for the presidency, many questions remain. Corruption has been one of the main problems in Ukraine and something that the voters seem to have held the president accountable for.

According to a poll conducted by RATING in April 2019, 83% of the respondents said that the country needs radical changes and 48% expected improvements as a result of the presidential election. Even though it is clear that the country is ready for radical changes, it is important to remember the difficulty of the situation that the new president will face – struggling economy, low trust, on-going war with Russia, and very high expectations.

Presidential power, consistency in constitutional design and its effect on democracy

This blog post summarizes some of the key findings from my article “Consistency in Constitutional Design and its Effect on Democracy” recently published in Democratization. In this article, I first ask whether the art of crafting and amending a constitution leads to a consistency among constitutional provisions. And second, if that is so, what effect has this consistency on a country’s democratic performance? Drawing from theoretical claims on the separation of power and electoral legitimacy, I develop a concept that identifies the institutional characteristics of consistency and inconsistency in the constitutional design with the example of the presidency and test its effect on the quality and level of democracy.[1]

The Idea

Research has provided us with substantive evidence that more presidential powers are associated with poorer democratic performance. But we also know of the problems of a causal argument because of the endogeneity of power (Cheibub 2007). Considering this, scholars have in recent years pushed the discussion in different directions, most importantly towards the advantages and disadvantages of individual constitutional provisions and their interaction when it comes to the power of the president (for example ,Elgie and Schleiter 2011; Sedelius and Linde 2018). Combined with the observation that the internal coherence of the classic categorizations of presidentialism, parliamentarism, and semi-presidentialism is not as strong as has been long assumed (Cheibub, Elkins, and Ginsburg 2014), I argue in this article that a new approach to understanding the mechanisms behind institutional effects on the quality of democracy is necessary.

Hence, I utilize a concept of consistency and inconsistency in the constitutional design of the presidency to assess institutional balances and effects. Constitutional designs usually combine ideas from different constitutional logics and sometimes also legal traditions. They rarely develop carefully mixed and matched institutions. Rather, constitutional designers go to a constitutional grab bag and often create a Frankenstein constitution with – presumably – very little attention to how different parts of the constitution might interact. The reasons to do so range from power considerations to historical legacies but can also be “caused by a polity’s commitment to apparently conflicting values” (Hirschl 2009, 1349). This grab bag is not necessarily a bad thing: Jacobsohn (2010, 16) for example stresses that “disharmony” in constitutional design can be a valued asset in the necessary process of renegotiation and recalibration. His idea is that inconsistency and disharmony in these designs may be more helpful in the democratic development of countries than harmonious or consistent constitutional solutions. This also informs the main hypothesis in which I assume that inconsistency benefits the level and quality of democracy.

Consistency and Inconsistency

But what is consistency in constitutional design? To develop a concept of consistency/inconsistency and assess its importance and impact on democracy, I focus on a core element of constitution making: the interaction of the way a president is elected and his/her constitutional power. This core element is often contested but is also central in nearly every modern republican constitution. This idea of consistency and inconsistency between election and power of the president touches upon two core principles of democratic government: the balance of power and the legitimacy of the presidency. Within the logic of checks and balances, a direct presidential election should be counterbalanced by a limited amount of power. But arguing in the logic of presidential legitimacy, a consistent constitutional design emphasizes the alignment of legitimacy and de jure power, and an inconsistent design reveals the counterbalance of legitimacy and de jure power. I follow the latter, relying on the rationale that a consistent constitutional design will align the way the president is elected with a coherent amount of de jure power. Hence, a constitutional design is defined as consistent when the introduction or abolition of the president’s direct election comes in tandem with matching constitutional powers or allows for an adaptation to the pre-existing order in a coherent way. Conversely, I define an inconsistent constitutional design (and amendment) when it counterbalances the mode of election with diametrically opposite powers.

Empirics

In order to empirically test my theoretical expectations, I focus on parliamentary and semi-presidential systems because the varying degree of the dual authority of a prime minister and a president. I rely on a new data set of the 79 republican countries that have experienced parliamentarism or semi-presidentialism at some point in their history since 1918 (Cheibub, Martin, and Rasch 2015; Elgie 2018). The constitutions and constitutional amendments analyzed in this study can be found in the repository of the Comparative Constitutions Project (Elkins, Ginsburg, and Melton 2009).

Based on these data, we see that consistency in the constitutional design of the presidency is more frequent in parliamentary and semi-presidential republics. Also, to no one’s surprise, direct presidential elections mostly result in an accompanying higher level of constitutional power: Constitution-makers obviously consider the legitimacy of the direct presidential election and honor it by bestowing more de jure power.[2]

Depending on the measure I use to quantify the quality and level of democracy, the effect of a consistent constitutional design varies. But the results show that a consistent design of the presidency is not supportive to democracy but suggest that inconsistency is beneficial. The inconsistency of constitutional design, a directly-elected president with only little power or an indirectly-elected president with a constitutionally powerful position, explains a higher quality of democracy, freedom, the rule of law, and horizontal accountability. As one could expect, we see the strongest positive influence of inconsistent constitutional design on horizontal accountability as measured by V-Dem (Coppedge et al. 2017).

Table 1. Effect of consistent constitutional design on horizontal accountability (GLS regression with random effects).

Source: Fruhstorfer, Anna. “Consistency in constitutional design and its effect on democracy.” Democratization (2019), Online First. DOI: 10.1080/13510347.2019.1590815.

This supports the assumption that a consistent design of the presidency creates either a president that is too strong or too weak and thus threatens the equilibrium between the core political institutions. Consistency and inconsistency are, an equally strong (in the case of the V-Dem measure an even stronger) explanation for the quality of democracy as the governmental type (parliamentary/premier-presidential/president-parliamentary system). Yet, as mentioned earlier, constitutional design is never picked in an absolute vacuum and the obvious endogeneity of this argument has to be taken seriously. But, the finding that constitutions that counterbalance the power and the election of the presidency are beneficial to the quality of democracy has major implications for the role of institutional design and the question of best institutional solution in democratization and democratic consolidation.

References

Cheibub, José A., Zachary Elkins, and Tom Ginsburg. 2014. “Beyond Presidentialism and Parliamentarism.British Journal of Political Science 44 (03): 515–44.

Cheibub, José A. 2007. Presidentialism, Parliamentarism, and Democracy: Cambridge University Press.

Cheibub, José A., Shane Martin, and Bjørn E. Rasch. 2015. “Government Selection and Executive Powers: Constitutional Design in Parliamentary Democracies.” West European Politics 38 (5): 969–96.

Coppedge, Michael, John Gerring, Staffan I. Lindberg, Svend-Erik Skaaning, Jan Teorell, David Altman, Michael Bernhard, M. Steven Fish, Adam Glynn, Allen Hicken, Carl Henrik Knutsen, Joshua Krusell, Anna Lührmann, Kyle L. Marquardt, Kelly McMann, Valeriya Mechkova, Moa Olin, Pamela Paxton, Daniel Pemstein, Josefine Pernes, Constanza Sanhueza Petrarca, Johannes von Römer, Laura Saxer, Brigitte Seim, Rachel Sigman, Jeffrey Staton, Natalia Stepanova, and Steven Wilson. 2017. “V-Dem Dataset V7.1.”.

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[1] The article also includes two important case studies on the inconsistent constitutional amendment in Czech Republic and the consistency of the constitutional design in Moldova that will not be discussed in detail here.

[2] In order to study the consistency of the constitutional design of the presidency, I rely on an original dataset of constitutional presidential power, which is measured with a revised and updated version of the measurement index (Shugart and Carey 1992). Based on this, I use the mean of de jure power, i.e., 23 points, as threshold for the distribution of power. An inconsistent design interlocks an indirectly-elected president with a score that exceeds the mean of de jure power (e.g., in Bangladesh) or a directly-elected president with a score that is below the mean of de jure power (e.g., in Czech Republic post- 2012). Conversely, a consistent constitutional design gives a directly-elected president a more than mean level of de jure power, and an indirectly elected president less than the mean level of de jure power.

Lithuania – Presidential Election Campaign to Reach the Finish

This weekend, on May 12th, Lithuanians will be electing their new president for the next 5 years. Presidential elections campaign, that some experts initially named “boring”, “indistinct”, and “without strategy”, currently is in full swing: from announcing the decision to run for a president in remote village to leaving the national debates in TV studio in a protest, presidential candidates reveal  a wide spectrum of possible choices for Lithuanians. However, it does not seem that the presidential elections of 2019 would transform Lithuania’s foreign policy: policy domain that is an prerogative of the president.

The final official list has 9 candidates: Arvydas Juozaitis, a writer, philosopher, one of the leaders of Sąjūdis (Independence from the USSR movement, established in 1987);  Gitanas Nausėda, a former chief economist of SEB bank; Ingrida Šimonytė, a former Finance minister, the only female candidate, current member of the parliament; Mindaugas Puidokas, political scientist, current member of the Parliament; Naglis Puteikis, a historian, current member of the Parliament; Saulius Skvernelis, former chief of police, current Prime minister; Valdemaras Tomaševskis, Polish origin Lithuanian politician, member of the European Parliament; Valentinas Mazuronis, member of European Parliament; Vytenis Andriukaitis, a former Health minister, current EU  Commissioner  for Health and Food Safety. According to the law, a person can run for president if he/she is at least 40 years old Lithuanian born citizen and has lived in Lithuania for the last 3 years. Latest public polls (by Vilmorus, for instance) suggest that the three frontrunners who could pass to the second round on the 26th of May are: Ingrida Šimonytė (22.3%), Gitanas Nausėda (21.9%), and Saulius Skvernelis (16.7%).

The frontrunners for the office seem to be appealing to a different kind of electorate. Current Prime Minister Saulius Skvernelis chose to announce the decision to run for the president 300 km away from Vilnius, in Rusnė that was one of his first places to visit once he was appointed a Prime minister in 2016. Analysts suggest that in such a way he showed the focus on the electorate in the regions. Moreover, domestic policy issues card is used quite a lot by Mr Skvernelis: he promised to raise pensions, support for young families, full energy independence. Meanwhile, Gitanas Nausėda who declared his candidacy at the newest library of the Vilnius University aimed to be associated with innovations, critical thinking, and new ideas if to believe his team. This newcomer to politics might become “a pig in a poke” which usually is very appealing to Lithuanian voters. Moreover, his candidacy was publicly supported by the former president Valdas Adamkus. Ingrida Šimonytė, who creates an impression of a pragmatic personality and ability to handle criticism well, once asked why she had chosen a rather simple location (the stairs at the Parliament) to announce her decision to run for the office, laconically answered: “Because here the lightning is better for you, journalists”. Endorsed by the Homeland Union – Lithuanian Christian Democratic Party, she might appeal to those who support current president Dalia Grybauskaitė. According to polling agency “Baltijos tyrimai”, Saulius Skvernelis is popular among men, Gitanas Nausėda appeals to the middle-aged electorate, while Ingrida Šimonytė would be elected by women and young people.

Despite the fact that Lithuania’s Constitution grants the right to settle basic foreign policy issues to the president, foreign policy issues have remained on the margins of the presidential elections campaign. Some analysts named foreign policy programs of the main presidential candidates “same wine in new bottles”. Indeed,  there does not seem to be a great divide between the key foreign policy ideas of Ginatas Nausėda, Ingrida Šimonytė, and Saulius Skvernelis when finish line is approaching: all the 3 candidates highlight the intention to maintain the pro-western foreign policy, based on membership in NATO and European Union.

The aforementioned candidates also display similar foreign policy ideas about Lithuania’s international partners. Once asked, Ginatas Nausėda, Ingrida Šimonytė, and Saulius Skvernelis claimed that they would choose Poland as a country for the first official visit if elected (a tradition started by Valdas Adamkus but interrupted by Dalia Grybauskaitė). The United States is perceived as one of the most important allies of Lithuania and is security guarantor expressing the need for Lithuania’s bigger contribution to security and proof of its worth. Saulius Skvernelis has gone even further claiming that in case of meeting with Donald Trump as Lithuanian president he would apologize United States for voting in the UN against the U.S. decision to transfer its embassy from Tel Aviv to Jerusalem.

However, during the presidential campaign, Prime Minister Saulius Skvernelis made some controversial statements: he suggested turning Astravets nuclear power plant into the gas power plant (the idea was rejected by Belarus), named Latvia a competitor of Lithuania, and expressed support for the transfer of Israel’s capital from Tel Aviv to Jerusalem. It was not completely clear whether he suggested the aforementioned issues as a Prime Minister or as a presidential candidate. He was harshly criticized by the president Dalia Grybauskaitė as not following the basic principles of Lithuania’s foreign policy as a result.

Meanwhile, Ingrida Šimonytė points out that Lithuania should act as a solid partner in the international arena, making more contributions, being a better listener and taking into consideration the interests of its partners. Analysts claim that if this idea was transformed into foreign policy practice, Lithuanian foreign policy would stop resembling 1 issue (security from Russia) country.

Russia’s issue has not been a dividing factor between the frontrunners: Ginatas Nausėda, Ingrida Šimonytė, and Saulius Skvernelis. In their foreign policy programs, they stress that there is no need for changes in Lithuanian-Russian relations. Saulius Skvernelis refers that Russia violated international law, Ingrida Šimonytė encourages to prepare foreign policy guidelines for future Russia; Gitanas Nausėda emphasizes the importance of value-based foreign policy. However, it is worth mentioning that less than 1,5 years ago S. Skvernelis suggested to significantly improve relations with Russia.

In terms of China, Ingrida Šimonytė demonstrates the most cautious position indicating the potential threats from this country in both economic and national security sectors; while Saulius Skvernelis encourages focusing on the pragmatic interests in this regard. Gitanas Nausėda claims that he does not see any risks from trade with China and expresses the need for a more active role of the president in creating business opportunities.

In other words, despite some disagreements of opinions, Ginatas Nausėda, Ingrida Šimonytė, and Saulius Skvernelis mostly support Lithuania’s status quo foreign policy. Even though candidates’ foreign policy positions do not seem to be intriguing, there is still a chance for a surprise in elections results: data suggest (“Baltijos tyrimai”) that 25-30% of Lithuanian voters are undecided until the last minute in presidential elections.

Posted on behalf of Gerda Jakštaitė, Lecturer, Vytautas Magnus University, by Fiona Yap

Portugal: is Marcelo “popularist”?

Last March 9, Marcelo Rebelo de Sousa completed three years as President of Portugal. His tenure has been widely acclaimed among the population, and stirred some controversies in academic and some political circles. What is Marcelo’s imprint on the political landscape of the country?

Recent opinion polls suggest Marcelo has reached very high levels of popularity. Although with a slight tendency to decrease over the last year, Marcelo still commands some 70% of positive opinions among the population at large – restoring the popularity of presidents to the levels obtained by Mario Soares (who left office in 1996 with 70%) or Jorge Sampaio (who also terminated his term with more than 55%), in sharp contrast with Cavaco Silva who, in spite of having had high marks, ended his tenure with negative (-13%) ratings. Cavaco Silva’s poor showing dramatically reduced his capacity to interfere in the political arena, and this fact has been widely acknowledged. So, restoring popularity is normally seen in Portugal as a necessary means to enhance the capacity of presidents to have a significant word on a multitude of aspects of political life, regardless of the constitutional provisions that remain unchanged. To dispose of high rates of popularity is thus a goal of every president.

Marcelo originates from the centre-right wing of politics, but his rise to power was mostly achieved by means of personal qualities and less by virtue of his line-up with the leadership of the parties of his political family, as his predecessor had done. His atitude towards the government issued from the 2015 elections was radically different from that of Cavaco Silva or the leaders of PSD and CDS: he recognised it as legitimate due to the existence of a parliamentary majority that supported the prime minister, even though the Socialist Party had only scored the second place in the popular vote. Throughout these three years, Marcelo has maintained the same position, not challenging the legitimacy of the government. He could then benefit from the positive atmosphere generated around a government that also benefits from the esteem of the electorate, as seen by the local elections of 2017 and consistent opinion polls that grant the left-wing parties a comfortable majority.

On the other hand, Marcelo has made a point of surgically distancing himself from the government in some critical instances, always intent on asserting the lineage of a centre-right politician. To start with, he broke with the tradition that assigns presidents a visit to Spain as the first foreign trip of their terms in office, and preferred to fly to the Vatican to meet the Pope (the country is nominally Catholic but the state is laic). Several other symbolic initiatives were taken along similar lines. But the confrontation that many expected he would pursue was not systematic. More than this, it did not derive from the use of his constitutional powers. For instance: veto power. In this area, Marcelo only used his veto power on eight occasions, and in all of them he forfeited the possibility of having the bills appreciated by the Constitutional Court, which might have produced a constitutional veto which would then require a special majority to be overturned, and preferred to use a political veto that could be overturned by simple majority. They were, so to speak, “friendly vetoes” that could be accommodated by the prime minister. In fact, as a former professor of constitutional law, Marcelo has never called upon the Constitutional Court to help in the analysis of controversial bills.

The source of Marcelo’s influence, paradoxically, resides in his extra-constitutional powers – namely the power of the word. As a former pundit who entered every house on Sunday nights for long years, commenting on every aspect of public life, Marcelo envisages his presidency much in the same vein: he offers his view on whatever issue is on the news. This technique of mass communication tends to generate an effect of proximity with citizens (illustrated by the fact that he excels in taking selfies with whoever asks for), and thus his presidency has been termed “the presidency of affections”. The photo that illustrates this post bears testimony to the proximity of the president with the people at large.

The power of the word, exercised in full view of the public, is critical to understand Marcelo’s presidency. Contrary to convention that suggests presidents and prime ministers exchange views in private (as Cavaco Silva has recently reminded us in bitter terms), or that their views are expressed after some bill has been presented for promulgation, Marcelo has inaugurated a new figure: to offer his opinion (and suggest the sense of his action) before the bill is presented to him, as to preempt the possibility of a veto. Two important pieces of legislation illustrate the presidential influence. Back in 2016, the prime minister announced he wished to propose a bill referring to the direct election of metropolitan areas governance bodies – and the president said it was not a good idea. Although the measure was in PS electoral manifesto and the government’s programme accepted by parliament, the prime minister did not pursue this initiative. More recently, Marcelo made it public he wished the proposed new law on the Basis of the Health System (framing the existence of the National Health Service) to be approved by more than the left wing majority in the House, and went further as he suggested that he would veto the bill if it were to exclude the private sector from participating in the management of units of the National Health Service. He even expressed his support to a draft bill proposed by a former Health minister which did not garner support in the parliamentary majority. Although the presidential position evolved (as he must have realised this is a bill which needs only a simple majority and therefore it would be possible for the left majority to impose its view whatever it would be), PS was split by this initiative and the original project was withdrawn in order to accommodate the presidential views. These examples make it clear that the weight of the president’s word is enhanced (or diminished) by their popularity and their capacity to stay tuned to the main stream of public opinion, even though one may not posit that in every instance the president expresses majoritarian views.

We have so far established that Marcelo is a popular character in Portuguese politics. For some people, however, the price of popularity is a concession to populism. Does the president enjoy high levels of popularity because he opens the doors to populism, i.e., to a form of political criticism that downplays the role of constitutional institutions? Or, conversely, is the president’s popularity an antidote to the rise of populism in the country (as many suggest), being able to contain criticism within the boundaries of established institutions?

Marcelo has been a moderate critic of the government, not less because the prime minister enjoys the sympathy of the electorate. But he has been tough on various occasions. Perhaps the most dramatic intervention of the president is the one linked to the great fires of 2017, which represented a very clear failure of the government to act swiftly. Public opinion turned then against the government, and the president expressed their voice. As mentioned in a post in this blog published at the time, Marcelo both expressed the view that the minister of Home Affairs was no longer able to keep her position (the prime minister proposed to replace her the following day) and the government needed to have its legitimacy refresh in the House (CDS presented a rejection motion that did not pass). Again, a tough intervention through the use of the power of the word – not the decision to dismiss a minister or the prime minister. On another count, Marcelo has made it clear time and again that he regards as a democratic imperative that the opposition to the government be strong and offers real alternatives. The fragility of the right of centre parties at a time when polls indicate they are at a loss and strategically divided offers the president an important arena to have his voice heard. However, he never hinted he would intervene directly over the party system (as he remains a member of PSD, albeit with his militancy suspended)

However, the frontier between the intervention of a popular president and that of a populist leader tend to be fluid. For this reason, it has been suggested that Marcelo should be considered as a “popularist” – i.e. both popular and at times populist. If so, it would be adequate to acknowledge that Portugal has so far been spared the plague of extreme right wing populism. The thesis that the Iberian Peninsula would avoid those dangers to democracy due to the long and painful experience of 20th century authoritarian regimes (Salazar and Franco) seems to be at odds with the reality of the emerging Vox party in Spain, and so new ideas are required to explain why Portugal has so far avoided the contagion of what seems to be a powerful force in modern Europe. So far, we may consider that Marcelo’s popularity has been a factor in mitigating its impact. The next elections will be a test. Will Portugal pass the test?

What’s next for Ramaphosa as South Africa heads to the Polls?

Just 15 months ago, President Cyril Ramaphosa became South Africa’s new head of state following the long-awaited departure of President Jacob Zuma. Now on the 8th of May, South Africa will hold its 6th national and provincial elections, marking 25 years since the fall of apartheid. How will Ramaphosa fare, as the country battles a slow-burn economic crisis, an electricity sector meltdown and simmering discontent among all strata of society?

As noted previously in these pages, Jacob Zuma was removed in February 2018 to allow the ANC to revive their waning electoral legitimacy and clean up the party’s image in the wake of damaging scandals. After the party’s bruising loss of major municipalities in the 2016 local government elections and the decline of the ANC’s national tally to just 54%, most pundits predicted that the Zuma-effect would pull the ANC under the 50% threshold in 2019.

Enter Cyril Ramaphosa. Having served as Zuma’s deputy for the last four years of the Zuma presidency, the sceptics noted that he had said and done little as the scandals piled up and the evidence overwhelmingly showed that the Zuma administration was intent on personalising the proceeds of the state for himself and his friends. But nonetheless, his ascendance as ANC and state president was greeted with hope and optimism, a welcome break from the deepening gloom that marked the end of the Zuma presidency.

This positive sentiment – dubbed ‘Ramaphoria’ – bolstered the currency, helped stave off a downgrade to ‘junk status’ by Moody’s and left the middle class sleeping a little easier. But it wouldn’t last long. Before long it became clear that there was a fight-back from the Zuma camp, and that many of the worst leaders from his cabal had remained within the upper echelons of the party and state. Ramaphosa inherited defunct institutions, a vastly increased state debt burden and an electricity crisis prompted by corruption, mismanagement and rapid debt accumulation.

The battle of the pollsters

Polling has relatively consistently – and somewhat unsurprisingly – pointed to yet another victory for the ANC at the national level. An Ipsos poll conducted between March and April predicts a minor recovery for the ANC from the 2016 polls – suggesting a final tally of 61% for the ANC, 19% for the Democratic Alliance and 11% for the Economic Freedom Fighters (EFF).

But a new poll released by the Institute for Race Relations (a Johannesburg-based conservative think tank) has suggested that the ANC’s numbers will fall even further this year than they did in the last local elections, and that the ruling party is likely to lose again in major metros and is likely to lose Gauteng – the country’s economic heartland – entirely to other parties. The IRR poll suggests that the party will take 49.5% nationally (on a predicted turnout of 100% of eligible voters) and 51% on a 71.9% turnout scenario. The same poll places the DA at 21.3% (100% turnout) or 24% on a 71.9% turnout scenario while the EFF takes between 14.9% and 14% across the two.

Of course, a 100% turnout scenario is unlikely – and levels of apathy across the country appear to be reaching alarming levels. Almost one in four eligible voters – nearly ten million people – declined to register, and another 5 million are expected not to turn out based upon previous turnout levels. The electoral commission’s data suggests that most of the disaffected are in urban areas – the most populous province, Gauteng, had the lowest registration rate at 67.1% of eligible voters. Young voters in particular seem to be staying away, with just 18% of the country’s 18-19 year olds registering, and a little over 50% of 20-29 year olds.

This will likely hamper the EFF’s electoral fortunes and play to the ruling party’s advantage. Older voters are more likely to vote on historical lines while younger voters generally express far more dissatisfaction with the slow pace of transformation over the last 25 years and have fewer deep historical ties to the ANC. But between these two polls, it is probably reasonable to expect that (barring a major crisis in the next 6 days) the ANC will likely win these elections with between 50-60% of the vote, that the EFF will make the most substantial gains amongst the opposition and the DA will maintain its place as the country’s formal opposition but fail to capitalise sufficiently on the discontent in the country.

What comes next?

In some ways the election represents a continuation of the status quo – that the ANC will continue a slow electoral slide, but that the two major opposition parties are unlikely to be sufficiently able to take advantage of growing public discontent to displace the ruling party. What will be more interesting to watch is what happens at provincial level.

Africa Confidential reports that at the provincial level, Zuma-supporters with a strong provincial base are encouraging voters to undermine the ruling party at national level by voting ANC provincially, but voting for other parties in the national polls. Several weeks ago, Zuma himself endorsed the populist Black First Land First movement-turned-party. It is alleged that some within this camp hope to use poor national election result to try to remove Ramaphosa in a special elective congress. For his part, Ramaphosa is believed to still be trying to clear some of Zuma’s allies out of the ANC using a Special Investigation Unit tribunal which will be established immediately following the polls.

This factionalism within the ANC is unlikely to be quickly resolved following the polls, and the country will still have to face the current dire economic circumstances. With persistently high unemployment figures (at 37%), unsustainable debt levels (50% of GDP) and low appetite for foreign investment, the country will remain in a sticky economic position. It remains to be seen which way Ramaphosa will take the ANC and whether he will pursue a more market-friendly growth path that potentially worsens the plight of some of South Africa’s poorest.

Ramaphosa has previously shown his proclivity for ‘order’ over fairness during the Marikana strikes, while his recent xenophobic statements on the campaign trail and support for entrenching traditional authorities’ control over rural communities appears to demonstrate a preference for expedience over principle. He will have to tread a fine path to walk South Africa back from the brink and help to build an inclusive and equitable economy. Cyril Ramaphosa needs to be up to the task – or he risks rushing the country down an ever more precarious path.

Nicaragua-An Ortega-Murillo Presidency?

Nicaragua: An Ortega-Murillo Presidency?

David Close

1May 2019

July 19, 2019 will mark the fortieth anniversary of the Sandinista Revolution. In those forty years the Sandinista National Liberation Front (FSLN) has governed for twenty-four; and during all those years in power Daniel Ortega has been the key player in the executive branch. From 1979 to 1984, he was the co-ordinator of the Governing Council for National Reconstruction (JGRN). He was elected president of the republic in 1984, 2006, 2011 and 2016. The first two were free elections. In the latter pair, although there was no doubt that Ortega won, there were clear signs that the Sandinista-controlled electoral commission massaged the results.

            In the forty years since the revolution, Nicaragua has operated under four distinct political systems. From 1979 to 1984 it had a revolutionary vanguard regime, albeit one featuring an uncommonly high degree of pluralism. Then, from 1984 through 2006, Nicaragua was an electoral democracy: winning free elections was the only way to win the right to rule.  By 2008, when tainted municipal elections brought protests and a heavy-handed response from the government, to 2018, the country’s political system is best described as hybrid – having both democratic and authoritarian traits – leaning somewhat authoritarian. It is currently best described as authoritarian, though with some pluralist characteristics.

            In authoritarian systems, we expect to find either a dictator’s personal rule or an official party that cannot lose power via elections. That being the case, Nicaraguans should speak of the Ortega administration; yet they routinely refer to the Ortega-Murillo administration: President Ortega and Vice -President Rosario Murillo, his wife. Though this seems strange, it accurately reflects the structure of power in both the FSLN and the Nicaraguan government since 1998. That is when Zoilamérica Narváez—Murillo’s daughter and Ortega’s stepdaughter—charged Ortega with rape and sexual abuse. Murillo took Ortega’s side and mounted a fierce campaign to discredit her daughter, labelling her a CIA agent. Soon Murillo was remaking Ortega’s image (no more olive drab fatigues) and that of the FSLN (now Christian, Socialist and Solidaristic). Though the changes did not bring the Sandinistas back to power, that needed a serious split in the Liberal vote, Ortega’s comeback win in 2006 brought Murillo into government, albeit in an unpaid, appointed role. She was elected vice-president in 2016.

Since becoming vice-president, Murillo has served as the administration’s public face, the person who appears on TV and radio. President Ortega’s televised appearances are limited to special occasions, such as the anniversary of the victory of the Sandinista Revolution on July 19th. Moreover, it is Murillo who convenes and chairs cabinet meetings. Thus she is effectively the administrative president of Nicaragua. These are not responsibilities normally assumed by a vice-president, so it is reasonable to view Nicargua as a de facto collegial executive. Ortega, however, is still the president, the nation’s political chief as his role in the crisis of 2018 demonstrated.

Entering 2019 it seemed that the administration’s hard line toward protesters had paid off. The presidential couple controlled the streets, had broken the back of civil society groups critical of their governance, harassed independent news sources and held many demonstrators and other foes of the regime as political prisoners. That situation soon changed. Not only did the economy shrink by 7.7 percent in the last quarter of 2018, but foreign investment fell by 53 percent in 2018 and fears were expressed that farmers might be unable to secure loans to let them sow their crops of corn, beans and rice: Nicaragua’s basic foods. Worse, experts foresaw no recovery before 2023. There were even predictions of a further 5 percent contraction in 2019.

Equally disturbing was the political pressure the government faced. The UN, OAS (Organization of American States), the US and most of Latin America condemned the violence the administration used to defeat the demonstrators, killing as many of 455, jailing even more and sending thousands into exile. In the Americas, strong support came only from Cuba and Venezuela. So in February 2019 the president and almost certainly the vice-president too, agreed to renew talks with its opponents, now operating as the Civic Alliance for Justice and Democracy.

The Alliance brought together those who supported the protests of 2018: students, pensioners and Nicaraguan big business. These groups had slightly different aims, but all agreed that everyone imprisoned for participating in the protests must be freed immediately and that full civil liberties must be restored for talks to be held. Further, though not a pre-condition for talks, both the Alliance and the OAS made advancing the date of Nicaragua’s next general election and reforming the country’s electoral commission to make it a non-partisan body non-negotiable demands.

As in the dialogue held in July 2018, Ortega refused to make significant concessions. Civil liberties remained effectively suspended, and regarding freeing arrested protesters, the administration’s initial response was to offer to do so in six months. By early April the talks had broken down. This likely was Ortega’s aim. His administration gained nothing by negotiating with the Civic Alliance, so stonewalling was the best option.

In the 1980s Nicaraguans said the Sandinistas would negotiate anything but their control of government. In the 2010s it seems that the FSLN of Ortega and Murillo will only deal with those they choose, and solely on topics the administration wants to discuss. As there are few instruments the public can use to make the government accountable, Nicaragua’s president is effectively above the law. This applies with equal force whether one speaks of an Ortega administration or an Ortega-Murillo government.