Some days ago, the Director of Ethics and Transparency (EyT), Roberto Courtney, caused a commotion in Nicaragua by offering to meet with the government on possible electoral reforms. Their organization is highly regarded both nationally and internationally for their expertise on electoral transparency, but given the extremely polarized political situation in Nicaragua, some suspected that EyT had sold out in some way to the government. This interview takes place within that context.
Roberto Courtney: “There will be early elections only if they are helpful to Ortega”
In La Prensa, Sunday, February 9, 2020 by Eduardo Cruz
Ortega is thinking about whether to allow the OAS to participate in the electoral reform process in Nicaragua, because for something less serious than what has occurred in Nicaragua, that international organization energetically intervened in Bolivia, states the expert in electoral issues.
Roberto Andrés Courtney Cerda, 55 years of age, leads one of the most important non-governmental electoral observation organizations in Nicaragua, but he does not have an office. “This is my office,” he says, pointing to his cell phone. That is why he received us in a hotel lounge in the capital.
Courtney, a lawyer by profession, brags about the fact that his organization, Etica y Transparencia, is not only “is very battle tested” on the topic of elections in Nicaragua, but that It is also “unscathed, with a lot of experience.”
In this interview, Courtney shares his vision of the current situation in Nicaragua, especially about how Daniel Ortega is maneuvering to stay in power and get to the elections in November 2021, in spite of the fact that with the crisis of April 2018 he is being demanded to move up the elections.
Passionate about the issue, Courtney explains what the process for electoral reforms should be, so needed to be able to be hold elections in Nicaragua.
What is Ethics and Transparency doing right now?
We are very involved in the situation of Nicaragua, looking at how to take to a safe port the issue of the electoral reforms and a peaceful solution to the crisis in the country.
Was the Conservative Party going to ask for the counsel of Ethics and Transparency?
Yes. I suppose that there should have been a flattering side to the fact that someone proposes that to you, but we, in general terms, like more the idea of thinking about electoral reforms particularly in the terrain of the consultation in the National Assembly, we have a preference to not be the particular advisor to anyone, and better to be a facilitator for all. It is not a disparagement. It is that we believe that there would be a better opportunity for a correct result in the National Assembly if, instead of coordinating in the name of a party, we coordinate in the name of everyone.
What was happening prior to April 2018 and what has changed?
To begin with, the lack of electoral democracy in Nicaragua exploded in a very ugly way. If you would have had correct electoral processes, instead of fraudulent ones, April 18th would never have existed; because, what you want to be considered the culprit, the social security issues, instead of being treated by an Assembly that had lost its legitimacy because of being the captive of just one party, achieved in fraudulent elections, at the moment that this type of distrusted body would issues laws which are also questionable, now that is a lot of questioning for things to properly move ahead.
What changed with April 18th?
There has been a lot of evidence that the electoral system was obsolete, and that this country cannot have an electoral process similar to that of 2011 or 2016. That the epoch in which the official data are false, the electoral rolls slanted, the parties closed down by the electoral apparatus and by the other government bodies, the elimination of deputies, all that are excesses of fraud that in some way were happening, and that, if we add to that, for example, the case of Bolivia, it becomes clear that in Nicaragua things in electoral matters happened a thousand times worse than the improper use of a server, which is what derailed the elections in Bolivia. The standard of what constitutes an acceptable election has gone up, while the Nicaraguan electoral system increasingly delivered poorer and more corrupt results.
The OAS has not acted the same in Nicaragua as in Bolivia…
Very true. That might explain a bit the reluctance of the government to get it [the OAS] involved again. The OAS issued some reports very similar to those of Ethics and Transparency during the elections, in the sense that they addressed all the shortcomings, mistakes, fraudulent elements, but they arrived at the conclusion that the government was legitimate anyway, and that what had to be done was to sit down with this government to fix the problems; which is why they did the memorandum of understanding, to fix it gradually, because a lot had to be fixed, but accepting that a legitimate government had come out of that fraud. The report, concerning the problems and the weaknesses, the irregularities because of the fraudulent elements, was the same as that of Ethics and Transparency, but it arrived at a different conclusion, the conclusion that the government was legitimate in any event, and that it was going to work with that government to fix the electoral system. Ethics and Transparency, with those same elements, declared a fraud, the need to do the elections over, and take the issue of the electoral reforms seriously instead of slowly …Ortega recognized that the OAS that jumped up over the improper use of a server, probably is no longer the same OAS as the one that signed a memorandum of understanding, in spite of the fact that the processes had been so fraudulent [in Nicaragua] as to make Bolivia seem like child´s play.
Here in Nicaragua the principal opposition party was eliminated, deputies were eliminated, there was no publication of the electoral results, oversight was not permitted, copies of official ballot counts were not provided, there were more votes than voters, the party in power provided voter IDs to whoever they wanted, and we can continue adding to this list. This was allowed to happen, and suddenly the government sees that for a lot less today the OAS is acting a lot more firmly, and this makes it realize that it is not the same organization with which the government signed the agreement that remains in force for another 20 days.
And if those 20 days pass by without anything happening?
It is not so much that in these 20 days there has to be a change in the electoral law. In these 20 days what should happen is that the government would renew the agreement with the OAS, get seriously involved in the issue of electoral reforms within a proper time frame, which is normally having the reform process concluded at least one entire year before the election day. Preferably before that, but definitely not any later. The best electoral reform, done very late, could be counterproductive. If the elections are in November 2021, by November of this year the reforms should be already completed.
What is the problem with the current law? Is it the law or a matter of attitude?
There are two defects. The principal problem is the arbitrator. The law does not make it neither easy nor hard to form a new political party. It is the Supreme Electoral Council, that depending on who is applying, either gives it away or makes it impossible. It is the Supreme Electoral Council that, depending on the order from the party who named the ten magistrates from their own lists of candidates, and with the votes of only their deputies in the National Assembly, in other words, it is a purely Sandinista electoral apparatus, without them even trying to hide it, and who, on having been named by the Sandinista Party, then treat the requests for legal status in accordance with what the Sandinista party recommends. The Supreme Electoral Council is full of political operatives from just one party, and that is not the way to construct arbitration. This event is indicative of another bunch of problems, in other words, a good part of the problem is this, that the arbitrators are unfaithful to what the law demands, they interpret it to the convenience of a political party, they jump over the crossbar when there is no way to interpret them in favor of that political party, and so on successively. To make a sports analogy, many times the opposition in Nicaragua, when it notes that the referee declares a penalty where there was none, begins to think that the key is changing the rule of the penalty, but in reality the key is fixing the arbitrator.
How willing do you see Ortega to change those authorities?
This is part of what we want to see in the process of discussing a reform, because yes there are some reasons why one could imagine that, like in 2011 and 2016, the last presidential elections, the government intentionally sent a message to the electorate that the process was going to be fraudulent. And that had the effect of promoting abstentionism, which benefitted the government, at the same time that it complemented that message with a ton of actions that affected the competitiveness of the opposition, and that artificially created advantages for the party in power. If that strategy was used in less troubled moments, less relevant times, like 2011 and 2016, now in 2021 one imagines naturally that the party in power would find it even more necessary to implement the strategy that was working for it when it had a little more space. Nevertheless, there is a new factor, there is a correlation of forces where a process of that nature, which used to generate at least international recognition and a certain dose of legitimacy, a process exactly the same to that one today would make the government, in the case of winning in a fraudulent process like the previous ones, would make the government move to the strange condition where it was more legitimate the day prior to the elections than the day after the elections. In a fraudulent process like that, you are more president the day before the elections than with that disgrace, and you have the example of Maduro there, who participated in some previously discredited elections, and not re-legitimized by the quality of the process itself, and so moves to being an illegitimate government, and half the world, three quarters of his neighbors in Latin America, declare him a usurper, and look for a figure to name president, who in this case was the president of the Assembly, but who in the case of Ortega could be a government in exile or anything.
Is it difficult for there to be early elections?
No. What is clear is that there would only be early elections if Ortega determines that they would be helpful for him. For example, if he turns to look at the money he has available, and notices that at some point he is going to have to have massive layoffs and things like that. Basic politics makes you think that at the moment of making those economic decisions that are very difficult to sell to an electorate, and that the electorate will make you pay for, it is better for you to have early elections, and that it be the new government that has to make all the difficult decisions. In that context we are clear that any early elections will only be if they are helpful to Ortega. If you were to say to me, what do you think is going to happen? I would tell you that I am 99% sure that the elections will be in November 2021, above all if an agreement on electoral matters is reached during this year.
What are the minimal changes that should be made in the electoral system?
The Electoral Law at this time still has disqualified and in limbo all the people who have not voted in the last two elections. These people right now are not automatic voters, they moved to a list of a passive electoral roll, who in theory do not have the right to vote, if they do not go through the process of re-qualifying themselves, when it is not even known where nor with whom that can be done. Principally all the people in the opposition who have abstained because of the fraudulent elections in recent years, today have ceased being Nicaraguans who can vote, automatically. Their status has to be restored. On top of this, after so many years of the government manipulating the electoral roll and citizen IDs, it is important to audit the roll, because it is probable, in fact it has been confirmed, that there are many cases of double voting and double registration, in the case of the party in power and its faithful. Nevertheless, there are a lot of complaints from the side of its opponents that they do not appear on the rolls, that the government does not want them to get their citizen ID, that the ID center never opened. You also have the elements of transparency. Publishing the results is normal, it is what is in your interest, it is what is always done, but the Electoral Council, let us remember that it had a very ugly trauma, precisely induced by this organization Ethics and Transparency in the year 2008. The trauma was when the Council did not allow us access to the Voting Reception Boards to be witnesses in 2008. It was discovered, according to the official data itself, that in many Voting Reception Boards, principally those that were opposition bastions, a phenomenon occurred, and it is that there were more votes than voters. The official electoral roll of the Electoral Council was saying that there were 150 voters in that board, and on the following day the party in power had won 400 to 0. You cannot win 400 to 0 where you have 150 voters, and you were sent only 150 ballots. We are not talking about a mathematical difficulty, we are talking about a mathematical impossibility, in other words, an absolute fraud. What attitude did the Supreme Electoral Council take after this? It quit publishing the data. It no longer told you how much each roll had, it did not tell you what results each voting reception board had. They made oversight difficult for you, they blocked access to contrastable results for you, and the process begins to deteriorate even more. It is as if, so that you are not caught with your hands in the cookie jar, you start to take out everyone´s eyes. Imagine for example the lottery. The lottery, instead of doing the lottery drawing in view of everyone, with the little balls tumbling and everyone asking to be witness to the fact that the process is fair, you had a little fat man who comes out two or three days later saying that the winning number is the one that he had in his pocket. The electoral system had degraded more or less to this level. So, the mechanisms of transparency have to be strengthened and basically adopt best practices. In fact, the OAS, in this sense, is very clear, and in the previous electoral episodes their diagnosis of the problems was very on target, the therapy was what was incorrect. The therapy should have been pointing out the fraud, and that the things would have had the consequences that they had to have. The therapy that the OAS recommended was let us let this pass and let us work so that the next elections be better.
The ideal would have been that the last two presidential elections would be done over?
Something that obviously cannot be done, because that is dead and buried, but in fact the recommendation at that time would have been to do them over. Note, it is not a matter of burning the country down for it to sprout again. And partly that is why simply and candidly time goes by and you get to the next election. The OAS understands that, after having given Ortega the opportunity, of letting the fraud pass with the commitment of fixing things for the next election, and that this has not happened, that instead things have gotten worse, the time has come to try to attempt another technique, which is calling things by their name, and that is what Ortega is afraid of. It is very advisable that for the electoral reform process to reach a good end, that the OAS be here, but I have my doubts about whether Ortega does not have now a very big concern about the fact that the OAS could lead him to provide an electoral opening far beyond what he is willing to do, and maybe more than what would be strictly necessary for the different actors to decide to participate.
How do you see Rosario Murillo as a candidate?
The parties will have their process for naming their candidates. We always recommend democratic, open, participatory processes, primary elections, elements much better than designating the candidate. But beyond that, we recognize that the Electoral Law of Nicaragua allows the political parties to be a type of private association that end up having an owner, and it should not be that way, but that legally they have the right of ending up with the photo on the ballot of the person who wins the cleanest primary in the world, as well as the person who the party might designate.
Should the political prisoners be freed before there are elections?
There are two lines of thought. First, everyone is in favor of the fact that there be no political prisoners, that would be fundamental. In terms of how to get them out, and that they quit being part of an extortionist game, where I put them in prison again so that we have to talk about this again, instead of talking about other things, the recommendation there is very simple. If we resolve the political problem, the issue of the political prisoners is solved as well. If we resolve only the issue of the political prisoners, and we cannot resolve anything until we resolve that issue, we are going to continue having the causes of new political prisoners. Probably the definitive way of getting the current political prisoners out, and those who might come in the future, is resolving the political problem. To subordinate addressing the political problem until the prisoners are released has that little great logical defect, and that is that you cannot make progress on the real solution until you resolve the issue of the political parties, and you set up for yourself a vicious circle where you cannot address the substance because you cannot address a prerequisite, when addressing the substance resolves the prerequisite.
Roberto Courtney was born September 11, 1964, the son of Roberto Courtney, a North American, and Rafaela Cerda, Nicaraguan. Courtney left Nicaragua in 1983 for academic purposes. In the United States he got a Bachelor´s degree in Economics at Loyola University and studied Law at Georgetown University.
He worked first in the legal department of the Psychiatric Hospital of Manhattan and later in a law office on Wall Street. Afterwards he opened his own law office in Los Angeles in 1993, and when he returned to Nicaragua in 1996 he had as a goal for his life to write movie scripts, possibly from there comes his interest in always being close to theatre events or concerts in the country.
He talks little about his family, but when he is asked about his interests, he points out that he has multiple interests and that he likes science, like his great-great grandfather Miguel Ramírez Goyena, a botanist by profession, the youngest principal of a secondary school in the country at the age of 22, and one of the greatest scientists in the history of Nicaragua. He is the brother of the former magistrate Rafael Solís.
He likes a phrase from one of his grandmothers: “Kindness is more lovely than beauty.”
He is married. He likes jazz and classical music. “The saxophone sounds very nice in classical music, almost like a flute, I should acknowledge that I play it with more enthusiasm than skill, but it makes me happy,” he says.
 On February 28, 2017 the Nicaraguan government signed a memorandum of understanding with the OAS to advise the government on electoral reforms for the next election (2021). That memorandum expires on February 28, 2020.