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Cablegate: By Decree Ortega Keeps Control of Key Positions

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WESTERN HEMISPHERIC AFFAIRS DIPL POSTS

C O N F I D E N T I A L SECTION 01 OF 06 MANAGUA 000019

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E.O. 12958: DECL: 2020/01/12
TAGS: PGOV KDEM PHUM NU
SUBJECT: By Decree Ortega Keeps Control of Key Positions

REF: A) MANAGUA 5 - OPPOSITION UNITY AND BENCHMARKS
B) 09 MANAGUA 1137 - OPPOSITION UNITY TALKS
C) 09 MANAGUA 1035 - COURT PERMITS ORTEGA'S RE-ELECTION
D) 09 MANAGUA 837 - OPPOSITION UNITY EFFORTS

CLASSIFIED BY: RobertJCallahan, Ambassador, State, Embassy Managua;
REASON: 1.4(B), (D)

1. (C) Summary: On January 9, President Daniel Ortega issued a
decree extending the terms of over 20 public officials which are
set to expire in 2010 if the National Assembly does not elect new
authorities. These officials include all 10 of the now-discredited
Supreme Electoral Council magistrates. The decree is widely
considered unconstitutional and unnecessary, as the election and
appointment of officials to other branches of government and to
state institutions is the exclusive prerogative of the National
Assembly. When taken with the governing Sandinista National
Liberation Front's (FSLN) plurality of 38 of the 92 votes in the
Assembly, this new decree ensures that Ortega's party will continue
to control these state institutions. The opposition and civil
society have called Ortega's action a "coup d'C)tat that will lead
to anarchy." End Summary.

An Unconstitutional Decree

2. (SBU) On January 9, during a speech to commemorate the third
anniversary of his administration, President Ortega read a decree
stating that if the National Assembly failed to elect new officials
to the various branches of government and state institutions, the
incumbents in these institutions would remain in office and their
terms extended for "as long as the National Assembly does not name
new officials or ratify the current officials." This decree
immediately affects the following positions: two senior positions
at the Human Rights Ombudsman office, all 10 of the Supreme
Electoral Council (CSE) magistrates, four of the 16 Supreme Court
(CSJ) justices, all eight comptrollers, and the Superintendent of
Banks. NOTE: The terms of the Human Rights Ombudsman, Omar
Cabezas, and his deputy expired on December 10, 2009. The terms of
two CSE magistrates end in February; the other eight magistrates
conclude their mandates in June. In April, the terms of the four
CSJ magistrates expire, including CSJ Vice President and Ortega
judicial operative Rafael Solis. The eight comptrollers conclude
their terms in April and the Superintendent of Banks finishes his
term in December.

3. (SBU) Legal experts, the political opposition and civil society
have all described the decree as unconstitutional. Supreme Court
President Manuel Martinez (aligned with the Constitutional Liberal
Party, PLC), stated that Article 150 of the Constitution (which
enumerated the powers of the presidency) does not grant the
President the ability to "name, remove, or extend the terms of
public officials," but rather this function rests solely with the
National Assembly under Article 138. Moreover, Article 150 grants
the President power to issue decrees only for "administrative
purposes." Similar criticism came from Alejandro Serrano Caldera,
the former Supreme Court Chief Justice during the first Ortega
administration and an ex-FSLN member, who commented that one cannot
defend the Constitution by violating it, and stated that with this
latest action the Ortega administration became a "de facto
government." The Citizens' Union for Democracy (UCD), a collection
of civil society organizations, described Ortega's decree as a
"coup d'C)tat that will lead the country into anarchy." Ortega's
decree drew criticism from the Catholic church, but also, for the
first time, from several Evangelical denominations as well. COSEP,
the umbrella organization of the Nicaraguan business community,
also denounced the decree for provoking political uncertainty and
harming the investment climate.

4. (C) Opposition members in the National Assembly called for
various measures to respond to Ortega's decree, including
presenting legislation to overturn the decree, filing charges for

MANAGUA 00000019 002 OF 006


abuse of power with the Public Prosecutor, and introducing
legislation to depose Ortega as president. Of these, legislation
to overturn the decree is the most likely, but ultimately will
depend on the political will of the PLC, which is instrumental in
the legislature's administrative process of bringing bills to the
floor. The removal of Ortega from office is unlikely as the FSLN
could easily block such a measure and the Public Prosecutor's
Office would be unlikely to pursue any abuse of power charge given
that Ortega loyalists fill key positions in that institution.

The Implications of the Decree

5. (C) While the decree states that incumbents' terms are
extended only if the Assembly does not elect new officials, in
effect this ensures that these state institutions will continue to
be loyal and friendly to Ortega's FSLN. The election of these
public officials requires 56 votes of the 92 deputies in the
legislature. The FSLN has 38 deputies, which leaves the opposition
two votes shy of the 56 votes required and technically gives the
governing party a veto in the election of the public officials.
The FSLN deputies are very disciplined in their voting and are
extremely unlikely to vote with the opposition. Moreover, in
practice the various "opposition" blocs rarely vote together and
have difficulty reaching a simple majority of 47 votes. In the
past, these public officials were elected through PLC-FSLN power
sharing agreements known as "El Pacto."

6. (C) Over the past few months, PLC honorary leader and former
president Arnoldo Aleman has attempted to publicly distance himself
from Ortega and the Pacto in an bid to position himself as the
leader of the opposition ahead of the 2011 presidential elections
(refs A, B, D). Members of his PLC party had publicly stated that
the party would work with a united opposition to elect these public
officials and that it would not negotiate with the FSLN. In recent
weeks, this unity effort appeared to gain momentum and looked to be
near an agreement among the opposition parties on the selection of
nominees for the CSE. These new magistrates, had they been
"non-partisan," would have been instrumental in shaping procedures
for upcoming presidential elections in 2011, including election
cycle dates, voter registration, composition of voter tabulation
centers, and, possibly, could have challenged the CSJ's recent
ruling that permitted Ortega to run for re-election (ref C ).

7. (C) If the opposition's efforts had come to fruition and this
unity bloc had proposed non-partisan CSE magistrates, this would
likely have led to a legislative stalemate between the FSLN and the
opposition, with neither having the 56 votes required to elect its
members to the various state institutions. For its part, the FSLN
required a CSE that would not challenge Ortega's ability to be
re-elected, and ideally a CSE that would permit electoral fraud
similar to that of the 2008 municipal elections. This possible
stalemate led to the speculation that these various government
offices would go unfilled as they became vacant. In December 2009,
when the Assembly concluded its yearly session, two initiatives
were publicly proposed to address this possible scenario. The PLC
presented legislation to form administrative councils at the
various state institutions to have the senior technocrats continue
administering the institutions. The FSLN, by contrast, had
publicly discussed legislative initiatives to extend the terms of
all the incumbents. With Ortega's decree, the FSLN gained the
upper hand in its bid to retain control of these state
institutions, as all the incumbents are guaranteed to continue in
office until the National Assembly can vote, with a 60% majority
(56 votes), to remove and replace them with new nominees.

Comment

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8. (C) Some government proxies have justified Ortega's actions by
raising the specter of administrative chaos or a government
paralyzed by the absence of duly-elected public officials. But it
is unlikely that this motivated Ortega's decision for the decree.
Rather, he likely feared the possibility of a new, "independent"
CSE that could challenge his ability to run for re-election, and
that would not countenance a repeat of the electoral fraud in 2011
as occurred in the 2008 municipal elections. With this decree,
Ortega ensures these state institutions, one way or another,
continue to be dominated with FSLN loyalists who support his
re-election effort. We suspect this decree is the latest
manifestation of the Aleman-Ortega Pacto or at a minimum was
designed by the FSLN to create strong incentives for Aleman to
continue to adhere to it. Ortega's decree permits Aleman to
squeeze out from under the growing pressure he had faced from the
opposition to help elect new, "independents" to the various state
institution posts. Aleman can continue to profess his indignation
at Ortega's actions without any further pressure to take
irreversible steps that would demonstrate his intent to preserve
and protect democracy. With the decree, Aleman no longer needs to
concede anything to the opposition, and at the same time retains
his piece of the power-sharing pie, as his allies too, remain in
their various positions. In return, given the supermajority hurdle
to replace incumbents, Aleman guarantees Ortega that the PLC
assembly members, whom Aleman still tightly controls, give no aid
to any serious opposition effort from the Assembly to replace these
figures. The decree reinforces his Pacto co-dependency , ensuring
his political future and fortunes remain closely intertwined with
those of Ortega.

The Decree

9. (U) Following is an unofficial translation of the decree:

DECREE No. 3-2010

The President of the Republic

By the powers vested in the president by the Constitution

I

CONSIDERING
That the State of the Republic of Nicaragua is a democratic,
independent, participative and representative country, whose
branches of government are the legislative power, the judicial
power and the electoral power, all coordinated amongst themselves
and subordinate only to the principle of preference to the supreme
interests of the Nation and to that established in the Constitution
of the Republic of Nicaragua, according to articles 7, 129, 131,
132, 138, 144, 150, 158, 164, 168, 173.

II

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That in my capacity as Head of State and Head of Government, the
Constitution makes me responsible for the harmonious coordination
of the branches of government and State institutions of Nicaragua
and before the vacuum of power created by the National Assembly by
not appointing nor convoking the process to appoint the authorities
of the branches of government or State institutions prescribed in
numbers 7, 8 and 9 of article 138 of the Constitution of the
Republic of Nicaragua it is my duty to avoid the judicial,
political, economic and social insecurity and instability of the
nation.

III

That the officials who comprise the judicial, electoral and other
branches of government and State institutions established by the
Constitution shall be elected by the National Assembly in the time
stipulated in order to guarantee the respect for and true and
material validity of the supremacy of the Constitution and
therefore the fundamental rights and guarantees of the people of
Nicaragua.

IV

That according to the Organic Law of the legislative branch, over
45 days have passed for the convening of the appointment of the
officials mentioned. Since December 10, 2009, the people of
Nicaragua find themselves without a human rights ombudsman; and in the coming months the composition of the constitutionally created
branches of government and State institutions that serve as pillars
to support the governance of the Nation of the people of Nicaragua
will become partially or totally incomplete, which due to the lack
of political will places in risk the economic and social
development of the nation. These are the electoral branch, the
judicial branch, the Comptroller of the Republic, the
Superintendent of Banks, among other institutions.

V

That on February 2, 2010 [sic], the terms of magistrates from the
Supreme Electoral Council expire and on March 7 of this year are
the regional elections of the Republic of Nicaragua's Caribbean
Coast; however the National Assembly has not convened the
corresponding election for those officials which would complicate
the proclamation of the citizens elected in the voting stations to
be carried out in the nation's North Caribbean and South Caribbean.
Moreover, the electoral branch would be left without a governing
body on June 1 of the current year, on the eve of the electoral
process for the national elections of 2011.

VI

That on February 14, 2010, all the comptrollers' terms expire, 5
titular and 3 alternates, who comprise the Supreme Council of the
Comptroller General of the Republic, this being a fundamental
institution to guarantee the correct management of State goods and
resources including the resources coming from international
assistance, including multilateral financial organizations such as
the World Bank and the IDB and the community of donor countries that comprise the budgetary support group; institutions and
countries that require that the Comptroller General of the Republic
certify and guarantee the management of these funds in order to
disburse these same funds. If these authorities are not elected,
the country is in grave risk of economic and social collapse.

VII

That there is legislation in the National Assembly that, violating
the Constitution, attempts to unconstitutionally name in various
branches of government and State institutions a council to
administer these bodies, which demonstrates the lack of political
will to elect (new authorities) and thereby adhere to the
Constitution.

VIII

Considering that in the immediate past upon the failure to adhere
to the constitutional obligation to elect officials, the
institutions themselves have resorted to their own norms and
regulations that establish the continuity of the incumbents until
such time as the appropriate institution elects or ratifies the new
officials, as was the case of the Central American Court of Justice
and in the law of the Superintendent of Banks and Other Financial
Institutions.

IX

In my capacity as Head of State and Head of Government, I ratify
that as the responsible party for the harmonious coordination of
all the powers and invoking the mandate given to me by the
Constitution to comply with and make others comply with the
Constitution, and that all officials also comply, as stated in
articles 150 and 129 of the Constitution, the latter which
subordinates all the powers and bodies of the State to the
principal of preference to the supreme interests of the Nation, and
based on all the aforementioned I find myself in the imperious
necessity to declare the following decree:

DECLARED

The following:

DECREE

Article 1 - It is the obligation of the National Assembly to
conduct in a timely fashion the elections and appointments of the
officials established in article 138 numbers 7, 8 and 9 of the
Constitution of the Republic of Nicaragua. Failure to proceed as
described beforehand, would lead to a condition of
unconstitutionality due to a legislative omission and this would
constitute a crime against the Constitution of the Republic of
Nicaragua.

MANAGUA 00000019 006 OF 006

Article 2 - In the face of the failure of the aforementioned
appointments a vacuum of power is created in the branches of
government and State institutions that impedes the functioning and
correct performance of these institutions. In virtue of the
aforementioned and to avoid a vacuum of power, all the officials of
the State's powers and institutions mentioned in the previous
article whose mandate ends in the near future are ratified and
their terms extended for as long as the National Assembly does not
name new officials or ratify the current officials.

Article 3 - This decree will enter into force upon its publication
in any nationally circulated media without prejudice by the later
publication in La Gaceta (Federal Registry), the Official Journal.

Given in the City of Managua, seat of the Government, on the ninth
day of the month of January in 2010.

//s//

Daniel Ortega Saavedra

President of the Republic of Nicaragua

//s//

Paul Oquist Kelley

Private Secretary for

Domestic Policy
CALLAHAN

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