THE ELECTORAL COURT UNDER THREAT: AN INSIDER'S VIEW

C O N F I D E N T I A L LA PAZ 000120 SIPDIS SIPDIS DEPARTMENT FOR USOAS E.O. 12958: DECL: 01/16/2018 TAGS: PHUM PGOV PREL BL SUBJECT: THE ELECTORAL COURT UNDER THREAT: AN INSIDER'S VIEW REF: LA PAZ 46 Classified By: EcoPol Chief Mike Hammer for reasons 1.4 (b) and (d). - - - - Summary - - - - ¶1. (C) Former National Electoral Court (CNE) President Salvador Romero, whose term ended on January 7, discussed his views on the court, its accomplishments, and challenges facing the institution with Emboffs this past week. Mr. Romero called the firing of three of the court's key division directors on January 8 very worrisome and likened it to "breaking the court's spine." He also shed some light on President Morales' January 7 diatribe against the court, the USG, and Salvador Romero himself (ref). Salvador Romero is clearly concerned about the CNE's future as an independent impartial institution that can guarantee free and fair elections. He pointed out that departmental electoral courts still retain some independence. Finally, Romero advised us (as members of the international community) to support international election observers. But, he stressed observers must watch over the entire process from start to finish and not just arrive in country a few days before the vote. With the government and the ruling Movement Toward Socialism (MAS) having already launched a massive propaganda campaign in favor of its constitution, and with the CNE and other courts under attack, heeding Romero's advice seems prudent. End Summary. - - - - - - - - - - - - - - - - - - - What is the National Electoral Court? - - - - - - - - - - - - - - - - - - - ¶2. (U) The CNE is Bolivia's last court of appeals for all judicial cases regarding elections. Decisions by the CNE cannot be appealed. However, the CNE has a much wider mandate. It is also in charge of maintaining the nation's civil registry, educating the public about the electoral process and democracy, certifying political parties and distributing public funds to registered political parties. The court is comprised of five justices, four are designated by a two-thirds majority of congress, the fifth is appointed by the president. The CNE oversees the nine departmental electoral courts, whose justices are appointed in the same manner. The CNE would be in charge of organizing up to three potential referenda in 2008 critical to future of Bolivia's democracy: two referenda on Bolivia's new constitution; and, a presidential and prefect (governor's) recall referendum. (Note: No dates have been set for these referenda, but the CNE needs a minimum of 90 days to organize a referendum. End Note). It could also oversee departmental referenda on the autonomy statutes for Beni, Pando, Santa Cruz and Tarija. - - - - - - - - - - - The Court's Successes - - - - - - - - - - - ¶3. (C) USAID, under its democracy program, invited Salvador Romero to give a talk on his experiences as a member of the court on January 9. Romero explained that since 1992 the court had taken great strides towards becoming a non-partisan, independent body. He commented the pre-1992 CNE, like many electoral courts in the region, fell under the executive branch (the Minister of Government) and was prone to partisanship. He noted that the court had presided over six separate elections since 2004, each was deemed fair and free with some 80 percent or more of the electorate participating. Romero stressed that the CNE's single greatest achievement is that the Bolivian public views the court with confidence and sees it as an impartial and fair arbiter of Bolivia's elections. ¶4. (C) Romero expressed great satisfaction with the CNE's civic (or citizen) education program. He highlighted the fact that the CNE's pubic information campaigns have become a model for other Latin American countries, and even for nation's on other continents ) noting that a documentary on the Bolivian electoral system has even made it into the curricula of several European universities. In a separate conversation with Emboffs, Romero and former Citizen Education Director Gabriela Romero (no relation to the ex-President) explained how the CNE organized a mini-series to explain the electoral process. The mini-series became so popular that news organizations were pressuring the CNE to get their hands on episodes before they aired. ¶5. (C) The ex-President also enumerated the court's achievements in expanding voter registration, and its use of information technology to "digitize" the civil registry. Romero explained that the digitization of the national registry, and the mere fact that an independent body such as the CNE is now in charge of birth certificates and other critical documentation, has given the court a much stronger database in which to weed out fraud within the electoral system. In 2004, he noted, some 400,000 Bolivians lacked birth certificates; by 2007 the CNE had reduced the number by half. He also spoke about how the CNE had "opened up" its registration system allowing voters to register anytime, in contrast to the past when voters only had a couple of weeks before each election to secure their registration. However, he noted that most voters, perhaps out of habit, still choose to register close to the elections. - - - - - - - - - - - Combating Vote Fraud - - - - - - - - - - - ¶6. (C) Many audience questions focused on the possibility for fraud in the three (or more) referenda that the CNE could likely administer in 2008. Audience members were keenly interested in how the Venezuelan carnet (identification document) program )- which some estimate has resulted in some 300,000 new carnets )- would impact the Bolivian voting system. Romero very diplomatically responded that the 300,000 number in isolation should not be cause for concern, given that no one knows if this number is true, and whether it marks a significant difference in carnet issuances from the past. He added that the national police, which is responsible for issuing carnets, had never coordinated with the CNE in terms of their issuance. ¶7. (C) Romero explained that the CNE's registration database was designed to identify spikes (statistical aberrations) in registration claims. Upon noting a statistically significant increase in registrations in an electoral district (via its database) the court can dispatch investigators to determine if the spike is merited (i.e., due to internal migration) or due to other, perhaps more nefarious, reasons. (Comment: Romero pointed out, that the CNE's responsibility is to investigate these aberrations, seeming to signal that this is an area where the court could be manipulated. End Comment). ¶8. (C) In a separate more private conversation with Emboffs, on January 14, Romero touched on the issue of polling station fraud. He noted that in the past six elections there has not been one case of a political party filing a claim against a polling station. Romero and former Citizen Education Director Gabriela Romero argued that the lack of controversy around the polling stations was a testament to the CNE's work at educating poll workers. (Comment: Any formal complaint of polling station fraud this year will represent a departure from year's past and could indicate a real problem with the electoral system or simply a perception by some that the court has been co-opted. One issue that could raise the specter of polling station challenges is if the CNE chooses to implement electronic voting. Opposition figures fear that the MAS could and would manipulate this technology -- never before used in Bolivia -- if adopted. End Comment). - - - - - - - - - - - - - Romero On 2008 Referenda - - - - - - - - - - - - - ¶9. (C) Romero expressed skepticism that a recall referendum was constitutionally feasible. He noted that while a president can legally resign, he cannot legally request to shorten his term. Romero argued that the implication of a presidential recall is that the terms of his vice-president and members of Congress would also have to be truncated as they are the president's constitutional successors. Romero was more confident that referenda on the MAS' constitution could happen. - - - - - - - - - - - - - - - - - - - - - - Voting Overseas -- Bolstering Evo's Support - - - - - - - - - - - - - - - - - - - - - - ¶10. (C) Currently Bolivians living overseas cannot vote. The Morales administration has made opening up suffrage to overseas Bolivians a priority; however, Romero noted that this initiative faces legal, financial, and timing obstacles. The legal obstacles primarily deal with who would organize and tally votes overseas. Today, departmental (state) electoral courts are responsible for implementing elections and tabulating votes. Critics of the Morales administration fear that overseas voting will be handled (manipulated) by Bolivian embassies whose employees are politically beholden to the president. To solve the legal questions, the president and congress would need to amend the current electoral code. The two branches would also have to agree on how to finance an overseas election system. Regarding the timing issue, Romero stressed that setting up an overseas voting system cannot (and should not) be implemented overnight. ¶11. (C) Romero's replacement Jose Luis Exeni has publicly stated that expanding the vote to overseas Bolivians is one of his goals. Opposition members fear that the government will enact overseas voting via decree, disregarding the electoral code. Critics argue that Exeni will work to persuade his CNE colleagues to accept the decree. In the short-term, the opposition fears the government would manipulate overseas voting to its favor. However, the CNE's failure to reject the decree as illegal would have longer-term implications; it would in essence invalidate (at least partly) the current electoral code. Adherence to the decree would also set a precedent for further executive interference into the court. - - - - - - - - - - - - - Breaking the Court's Back - - - - - - - - - - - - - ¶12. (C) Many at the USAID discussion wanted to hear the former court president pass judgment on his replacement Jose Luis Exeni. (Note: Jose Luis Exeni, was named the court's president, over-stepping the CNE's tradition of designating the senior justice the president. End Note). Within 24-hours of taking charge Exeni oversaw the firing of three key CNE officials ) the directors of Citizen Education, Information Technology, and Administration. One director had worked with the CNE for 15 years. Romero chose not to speak about Exeni directly, but did call the firing of three of the court's (thirteen) director's very "concerning." He called the three divisions effected, the Court's "spinal column," arguing they represented the three divisions that are most critical during elections. Romero argued that the directors represent the CNE's institutional knowledge, stating "CNE justices come and go, but the directors stay." ¶13. (C) During a more private conversation with Romero, he noted that none of the directors had ever faced any internal sanctions and each had impeccable records. The recently fired Citizen Education Director Gabriela Romero stated that her dismissal on January 8 was a complete surprise. Director Romero explained that in the morning of January 8 she and her fellow directors were told that everyone's jobs were safe, by 6:30 PM she had received a memorandum of dismissal. In addition to the three directors who were fired, many CNE employees have apparently been shifted around the organization. For example, Ms. Romero's secretary has been assigned to a completely different division. (Comment: Gabriela Romero became director of Citizen Education when now CNE President Exeni left the directorship in 2005 to work as a consultant for the United Nations Development Program. Exeni left under allegations that he had tried to politicize education campaigns. End Comment). - - - - - - - - - - - - - Romero Frustrates Morales - - - - - - - - - - - - - ¶14. (C) Salvador Romero's last day on the CNE also marked the inauguration of the court's 2008 activities. President Evo Morales used an unscheduled appearance at the inauguration to launch a diatribe against the CNE, calling himself a "victim" of the "USG manipulated" court (ref). (Note: Morales apparently forgot that the CNE presided over the transparent December 2005 election that saw him elected president. End Note). According to Romero, Evo's attack on the court was born out of frustration after Romero refused to step down before the end of his term and the CNE's inauguration. Romero stated that he had counseled incoming court member Exeni not to take his oath before January 8, so as not to overlap with him. (Note: Exeni replaced Romero as the court's presidential designee. End Note). Romero told Exeni that if he (Romero) stepped down out of pressure from the executive branch, Exeni could expect similar pressures. Romero explained that Morales wanted Exeni on the court for inauguration day to prevent Romero from making a final speech ) a speech Romero used to criticize the government for not funding the CNE's five-year plan. Angered that Romero would not step down a day early and by Romero's criticism of his inaction, Morales went on his unscripted tirade against the court. - - - - Comment - - - - ¶15. (C) Salvador Romero is clearly concerned that CNE's long fight to establish a clean electoral system and an impartial and independent court are in peril. One ray of hope in the short-term is that the departmental courts are still basically strong and independent; most justices on the nine departmental courts are slated to stay until 2009. The nine departmental courts should act as brakes for any large scale electoral fraud. That said, if what has happened in the regular courts is any indication, we can expect that the government will try to pressure and influence independent minded judges on the nine departmental electoral courts. To help ensure free and fair elections, Romero stressed the need for international observers. But, he argued, observers must watch over the entire election process including the critical registration period and not just arrive in country a few days before the vote. Romero's warning appears to be on the mark as the government has already begun its media campaign to support the MAS constitution. End Comment. GOLDBERG