Will the Coming Elections in Ecuador Be Free and Fair?

In the wake of next February’s Ecuadorian presidential election, and less than a month before the official start of the campaign, the rules of the game set by the reform to the electoral law remain questionable. The concern over the substance of the new electoral law stems mainly from Article 21, which restricts the freedom of the press during the campaign and hinders the ability of the opposition to disseminate electoral propaganda. Outside of these concerns, questions have also been raised about the reform’s legality: it was adopted without a majority in the legislature and passed after the timeframe permitted by the constitution. In addition, members of the Citizen Participation and Social Control Council (CPCCS) have questioned the independence of the National Electoral Council (CNE), the ultimate authority in electoral matters in charge of assuring that elections are free and fair.

Substance of the electoral law reform: Article 21

Regarding the restrictions to the freedom of the press, the partial veto from the executive to this law, stated in Article 21 that the media should abstain from “direct or indirect promotion that could have an impact for or against any particular candidate.”[1] The National Assembly never approved Article 21; instead the reform was passed by default through a mechanism that allows the president to order the enactment of the law if the Assembly does not reach a consensus in 30 days.Moreover,  “direct and indirect promotion” is an ambiguous choice of words that lacks any practical purpose. This clause would require judicial interpretation for every published news article or story when a candidate argues it affects his or her campaign “indirectly.” Perhaps the most concerning aspect about this provision is that few cases may be presented for judicial consideration, but it will create an environment of self-censorship in newspapers, TV, and radio stations due to the risk of being subject to charges. Ultimately, this reform is being enforced at a time when ideas and political platforms should be openly discussed without prior censorship. Restricting the freedom of the press during an electoral campaign not only affects journalists, but it also violates the right of the population to access information, since the media will not disseminate information freely.

 Another dispute over Article 21 is the clause that impedes the candidates to disseminate electoral propaganda privately. Campaign ads can only be contracted through the electoral authorities. While the opposition needs to operate through a series of bureaucratic obstacles to diffuse their propaganda, public entities have been given approval from the CNE to advertise the government’s accomplishments in key issues such as education, healthcare, security, and public works, among others. Furthermore, the Alianza País (AP) National Convention was transmitted through three state-owned TV channels. It is clear that public resources have been used to promote Correa and his party, violating the law and granting the current administration an unfair advantage over the opposition.

 Irregularities in the process of passing this reform

Moreover, this piece of legislation was enacted without the approval of the Assembly, since two articles (21 and 27) from the executive veto did not get enough votes to be approved. The legal basis for passing the reform without a majority in the legislature is found in Article 138 of the constitution, which allows the president to order the enactment of the law if the Assembly does not consider the objection in 30 days.[2] But the Assembly members did, in fact, consider these two articles. However, they were unable to come to an agreement to either reject or approve them.[3] The result of this process was not only the illegality of the reform, but also its undemocratic nature, since assembly members were elected by the people to go to Congress to draft laws and vote on them, and this text was imposed by the executive. More revealingly, the vote reflected the division within Alianza País (AP), the ruling party. Three assembly members acknowledged that the executive veto would restrict the freedom of the press, and admitted they had to support it in order to be considered as candidates for the upcoming elections. [4] The approval of this reform is clearly not a consensus of the assembly members. The opposition voted against it, and the members of AP were subject to direct influence of the executive, since their vote could determine whether or not they choose to run again in 2013. This conflict of interest further weakened the legitimacy of such reforms.

 Aside from those irregularities, the bill was approved after the time limit allowed by the constitution, which is a year prior to the elections.[5] Since the reform was enacted too late to apply to the coming electoral process, the CNE decided to move the voting day to February 17, 2013, maneuvering the electoral calendar so that the reform could be implemented for the campaign scheduled for this year.

 Criticism over the formation of the National Electoral Council

In Ecuadorian politics, the National Electoral Council is the ultimate arbiter in electoral matters, in charge of assuring that elections will be free and fair. However, its independence from the dealings of the executive branch is questionable. David Rosero and Andrea Rivera, members of the Citizen Participation and Social Control Council (CPCCS) have reported a lack of transparency and objectivity during a series of public merit examinations, which selected CNE members who were sworn in last year. Rosero and Rivera publicly declared that they were not allowed to meet their duties with respect to monitoring the transparency of the selection committee that selected the current members of the CNE.[6] According to Rosero, the meetings of the selection committee, which were meant to be open to the public, were actually being taken place late at night and in secret. Although Rosero and Rivera repeatedly requested information about the examinations, no response was given.[7]  Furthermore, members of the selection committee were surprised when they came to the realization that some of the candidates were given points in their applications without using the computer software to keep it on the record, resulting in no proof of their qualifications.[8] This means that someone whose identity is still unknown was secretly awarding points to the applicants who eventually won the public contest. These conditions fostered the tension associated with the electoral process in the country and increased a lack of trust in the CNE.

 In July of 2011, two major newspapers published a list of all applicants with proximity to the administration, due to a number of concerns that arose from the irregularities in the public contest.[9] From the 236 candidates who participated in the process, at least four out of five applicants who are now members of the CNE, have ties to either the president or his party. These ties would not be an issue if the selection process had been transparent, and if the selection committees had been held accountable for choosing the current members of the CNE over the rest of participants, but this was not the case.

 The professional background of each of the current CNE members shows they have had very limited experience in electoral matters. In the case of the vice-president of the CNE, Paúl Salazar, his electoral experience consists of having integrated part of the committee in charge of a polling station (which is a position filled by thousands of citizens every election). He has published two articles on electoral matters, but neither is longer than a page, and both were published a few days before he entered the public merit examinations for his position.[10] Domingo Paredes, current president of the CNE, was in charge of the National Water Secretariat (SENAGUA) and the National Council on Narcotic Substances (CONSEP) during the current administration. While he has a solid background with significant experience in environmental projects, his qualifications to monitor the country’s general election are questionable.[11]

 Petitions of unconstitutionality

Compliance with the constitution and other legal norms in a number of instances has been put aside in order to implement the electoral reform. For this reason, five actions of unconstitutionality have been filed before the Constitutional Court (CC), though the CC resolved to deny these petitions, except for one. Unfortunately, the change made by the CC in Article 21 maintains the article’s ambiguous wording and does not represent any significant change to its implementation.[12] The president of the CNE, Domingo Paredes, proceeded to eulogize the decision of the CC, stating that the media will be able to deliver information and opinion, but not intervene directly or indirectly in favor or against any candidate or political party. But the law does not define where the limit is. Therefore, the decision over the difference between what constitutes information or promotion remains in the hands of the electoral authorities.

 The Right to Honor and Dignity vs. The Right to Freedom of Speech

The next day after the CC resolved on the constitutionality of the electoral reform, Paredes made a public statement lamenting the lack of a law to regulate social media during an electoral campaign, “unfortunately there is no norm yet,” he said. And he continued, “[the CNE] has to regulate attitudes, pronouncements of people, so they do not violate human rights, like honor and dignity.”[13] Although this type of legislation does not exist, there is a tendency of the current administration to gradually impose more restrictions to freedom of speech on the basis of the right to honor and dignity, as exemplified through the draft reform to the penal code that punishes slanderous allegations directed to public officials, the judicial prosecution of various journalists and media owners, the verbal attacks directed to the Special Rapporteurship for Freedom of Expression of the Inter-American Commission on Human Rights, etc. However, in cases involving a conflict between candidates or public officials’ right to honor and the right to freedom of expression, the latter should prevail because the debate touches on matters of public interest. Correa’s political opponents, in addition to a variety of journalists, civil society organizations, and human rights activists have repeatedly condemned the rhetoric used by Paredes.

 Conclusion

The Organization of American States’ Democratic Charter claims in Article 3 that the “respect for human rights and fundamental freedoms… the rule of law, the holding of periodic, free, and fair elections… and the separation of powers and independence of the branches of government” are essential elements of representative democracy. Unfortunately, all of these elements have been dismissed with the approval of the electoral reform and the selection of the CNE members. Ultimately, if electoral observation missions exert no pressure on responsible parties, the capacity to fix the deterioration of the electoral system will lie only on the willingness of the current administration to abide by fair rules. The conditions described above indicate that the current political situation of the country will not contribute to the conduct of free and fair elections, and the long-term electoral observation commissions have the responsibility to promote awareness of these issues.

Claudia M. López Costa, Research Associate at the Council on Hemispheric Affairs

Please accept this article as a free contribution from COHA, but if re-posting, please afford authorial and institutional attribution. Exclusive rights can be negotiated.