AN IMPARTIAL ELECTORAL COURT IN BOLIVIAN REFERENDA?

C O N F I D E N T I A L LA PAZ 000485

SIPDIS

SIPDIS

E.O. 12958: DECL: 03/03/2018
TAGS: PHUM PGOV PREL BL
SUBJECT: AN IMPARTIAL ELECTORAL COURT IN BOLIVIAN REFERENDA?

Classified By: A/DCM Mike Hammer for reasons 1.4 (b) and (d).

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Summary
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1. (SBU) As Bolivia's opposing political forces face off at
the ballot box in 2008, the National Electoral Court (CNE)
)- which oversees the electoral process -- faces some of its
toughest challenges since Bolivia's return to democracy in
the early 1980s. President Evo Morales' Movement Toward
Socialism (MAS) and the opposition typified by the autonomy
seeking lowland departments (states) are both promoting
referenda on their competing visions for Bolivia. The CNE
and its departmental lower courts (CDE) have a mere 60 days
to organize and execute a national referendum on the MAS'
draft constitution and at least four separate referenda on
the autonomy statutes proposed by the departments of Beni,
Pando, Santa Cruz and Tarija. Normally the electoral courts
would have 90-120 days. The CNE and CDEs must carry-out
their work in a polarized political environment, where the
likelihood for confrontation is high as members of the MAS
and opposition have called on their supporters not to accept
the other's referendum.


2. (C) With this political back-drop, the Ambassador paid a
courtesy call on recently appointed CNE President Jose Luis
Exeni March 3. Appointed by President Morales, the
opposition views Exeni with considerable skepticism. The
firing of three key career CNE officials, within his first
day on the court, immediately raised questions about his
impartiality. During the meeting Exeni expressed his top
priorities are improving: voter registration; citizen
education; electoral processes administration; and, the
general strengthening of the institution. Regarding the
upcoming referenda, Exeni acknowledged that the short
deadlines posed administrative, logistical, and budgetary
challenges. He and his court colleagues stressed they would
"do their job" strictly following the electoral code, and
would leave questions on the "legality" of how the various
referenda were convoked to the Constitutional Tribunal.
(Note: The Constitutional Tribunal is not actually
functioning, because all but one its magistrates have left
due to political pressure. End Note). The CNE President
expressed that he welcomed the "maximum possible" level of
election observation from both international and domestic
monitors. Faced with the reality of overseeing a potentially
conflictive voting process where his every action is highly
scrutinized, Exeni may be rethinking putting his own partisan
stamp on the court. End Summary.

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What is the National Electoral Court?
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3. (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 current court lacks its full
complement of magistrates, including Exeni there are three
magistrates rather than the normal five. The CNE oversees
the nine departmental electoral courts, whose justices are
appointed in the same manner.


4. (U) President Morales appointed Exeni to the court,
replacing the outgoing Salvador Romero who was appointed by
President Carlos Mesa. Sworn-in on January 7 as a normal
member of the court, he was elected President by his peers on
January 8 )- a break with the CNE's tradition of designating
the senior justice President. Within 24-hours, the Exeni
court sparked controversy when three key CNE officials were
fired -) the directors of Citizen Education, Information
Technology, and Administration. One director had worked with
the CNE for 15 years. (Note: A new Director for Information
Technology )- with no experience working on the CNE, but
with seemingly considerable IT experience )- was appointed
February 18, after public solicitation for nominees. End
Note).

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Challenging Times for the CNE
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5. (U) Recent events and Bolivia's divided and
confrontational political atmosphere pose many challenges for
the CNE. MAS Congress members passed enabling legislation on
February 28 calling for a national referendum on their draft
constitution, while pro-MAS supporters threatened with
violence opposition members who attempted to attend the
session. Meanwhile, four opposition-led departments have
presented their petitions to their respective CDEs to
organize referenda on institutionalizing their demands for
greater autonomy. A "yes" vote on the departmental autonomy
statutes would greatly reduce the central government's
control over the departments. The MAS opposes the
opposition-led departments' autonomy efforts and during the
February 28 legislative session passed a law that essentially
rejects the departmental petitions )- arguing that only
Congress can convoke departmental referenda.


6. (U) The enabling legislation passed during the February
28 nearly MAS-only Congressional session scheduled the
national constitutional referendum on May 4, the same day as
the opposition-led Santa Cruz's department's autonomy statute
referendum. Further complicating the CNE's work is that
Congress has stipulated that is has a mere 60 days to
organize the constitutional referenda. The CNE typically
requires 90 to 120 days. The opposition views the scheduling
of the constitutional referendum on May 4 as yet another
provocation, and now the four lowland opposition departments
are seeking to move up their autonomy referenda to April 27.

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A Cordial Affair
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7. (U) The Ambassador paid a courtesy call on recently
appointed National Electoral Court (CNE) President Jose Luis
Exeni March 3 at the CNE's building in La Paz. (Note: The
CNE building was previously the U.S. Ambassadorial residence
and was donated to the CNE. End Note). Two other justices
attended the CNE's Vice President Jeronimo Pinheiro Lauria,
and Amalia Oporto. The USAID director, USAID's team leader
for democracy programs, as well as a poloff also attended.
The meeting between the Ambassador and CNE justice was quite
cordial.

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International Assistance Is Crucial
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8. (C) The Ambassador opened the meeting by asking Exeni
his thoughts on international assistance to the CNE and the
electoral process. Exeni responded that the court is
beginning to execute its five year plan which looks at
strengthening and improving four areas: the civil registry
(voter registration); citizen education; administration of
electoral processes; and, the general strengthening of the
institution (CNE). Exeni explained that the Netherlands,
Denmark, Sweden, Japan and the United Nations Development
Program are contributing funding to the five year plan. He
argued that international assistance is crucial to the court.



9. (C) Later in the meeting Exeni stressed that the CNE
views a "maximum" level of observation -- by international
observers (the European Union and Organization of American
States) as well domestic observers -- as very important. He
emphasized that he would like to see the "largest possible
participation" of observers. The Ambassador remarked that
the international community might find it difficult to
support the referendum process )- whether via observers or
simply funding )- given questions regarding the legitimacy
of the process in which the various referenda were convoked.
Exeni tried to reassure the Ambassador that the CNE's process
would be free and fair by asserting "we will do our job."
Exeni acknowledged, however, that "nothing is normal" but
that it was necessary to guarantee the participation of
election observers.

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We Will Comply With Our Mandate And Nothing Else
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10. (C) Time and again, Exeni and his two court colleagues
stressed that despite the tense political climate they would
only perform their jobs as stipulated in Bolivia's electoral
code, arguing the code was "clear" about the CNE's duties.
Exeni explained it was not the CNE's role to determine the
legality of the convoking legislation )- be it the
legislation for the constitutional referendum or the
departmental petitions. Exeni argued that the lack of a
Constitutional Tribunal represented "a large void"
judicially. The Constitutional Tribunal is the body which
has the mandate to decide the constitutionality of a
particular law or action by the executive and/or legislative
branch.


11. (C) Regarding the competing referenda, Exeni stated
that CNE should oversee both. Referring to Exeni's comments
that the CNE must follow the law, the Ambassador pointed out
that MAS-dominated Congress on February 28 had passed
legislation making itself responsible for convoking any
departmental referenda )- a move that essentially
criminalizes the opposition's current push for departmental
referenda on their autonomy statutes. Exeni explained that
the departmental courts are the actual bodies that will
organize and oversee elections, and that they have the
"competency" (responsibility) to administer the departmental
referenda.

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A Complicated Situation
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12. (C) Exeni and his colleagues acknowledged they face a
very "complicated" situation. Vice President Pinheiro )-
who is responsible for overseeing the administrative aspects
of the electoral process -- stressed the 60-day deadline set
by Congress posed a serious challenge to the CNE'
administrative, budgetary and logistical capacities. Exeni
explained that the court had yet to complete a thorough
forecast of the cost of the elections, but that he and his
colleagues would soon be evaluating whether or not the CNE
had the requisite funds to organize and execute the various
referenda. Exeni explained that he felt it was more rational
and efficient (presumably cost and logistically efficient) to
schedule the referenda on the same day. (Comment: While
Exeni's argument is valid, his nod to scheduling the
referenda allies him with the MAS position and implies his
acceptance of the MAS controversial convoking legislation.
End Comment).

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Fraud Concerns
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13. (C) The opposition frequently voices its concern that
the upcoming referenda will be fraught with fraud and undue
influence. There is less concern that the CNE will directly
participate in fraud, rather that it will "look the other
way." Many in the opposition fear that Venezuela "carnet"

(identification card) program will be used to increase the
MAS voter pool. An abnormal spike in voter registrations in
a particular electoral district is something the CNE has the
tools and mandate to investigate; however, the CNE justices
have to authorize such an investigation. The opposition also
argues that the MAS (and government) are unfairly (and
perhaps) illegally financing their campaign to promote the
MAS draft constitution. The MAS-approved government budget
set aside 10 million Bolivianos ($1.3M USD) to promote a
national "yes" campaign for the MAS constitution. Meanwhile
radio, TV and newspaper advertisements touting the MAS magna
carta have been circulating since December, yet the electoral
code states such activity is permissible only once an
election has been officially convoked, and only for the 60
days prior to the election. (Note: The government could/may
argue that a referendum is not an election per se, and
therefore the 60-day limit, and other advertising rules do
not apply. End Note). The electoral code also stipulates
that state-media outlets must provide equal time to
opposition points of view, however it remains to be seen
whether the CNE will enforce this requirement. The opposition
also insists that unaccountable Venezuelan money is pouring
into Bolivia, some of it used to promote the MAS constitution
and to denigrate the opposition's position.

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Comment
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14. (C) Exeni repeatedly stressed how "complicated" the
coming electoral processes will be. The CNE President
explained that one of his key goals was to "preserve" and
even "strengthen" the CNE as an institution throughout the
process )- arguing the CNE's independence, impartiality and
autonomy are vital to its preservation. Exeni argued that if
the CNE's independence is lost, it would be dangerous for
Bolivia's democracy. We concur with this sentiment, yet
unfortunately Exeni himself poses an obstacle to achieving
his own goal. The opposition is highly suspicious of him.
Following Exeni's dismal of the three long-serving court
directors the opposition publicly voiced its concerns over
the future of the court's independence and impartiality.


15. (C) Beyond the dismissals, the Morales administration's
more favorable approach to the court causes some observers to
doubt the Exeni court's commitment to impartiality. Under
the previous CNE President's tenure, President Morales chose
not to fund the CNE's five year plan. In fact Evo publicly
stated that the government rejected funding the plan because
he considered the court partial (i.e. favorably disposed to
the traditional -- non-MAS ) parties). Now with the change
in CNE presidency, Morales has changed his mind, leading some
in the opposition to believe the court is now MAS-controlled.
Interestingly, without prompting from us, Exeni appeared to
want to deflect his opposition critics' arguments by stating
"we will approach the process calmly, we have received no
pressure from either side."


16. (C) Exeni himself is in a very "complicated situation,"
his actions are under the microscope -- a level of scrutiny
he is likely nervous about. He may be rethinking )- if he
ever contemplated it ) putting his own partisan stamp on the
court. For example, when the first petition books for
calling a referendum on Santa Cruz's autonomy statutes were
delivered to the Santa Cruz CDE Exeni attempted to block the
action, arguing Congress had to rule on the subject. He
appears to have backtracked considerably. Now his position
is that the CNE and CDEs will oversee the opposition-led
departments' demands for a vote on their autonomy statutes
despite the February 28 Congressional legislation prohibiting
any body other than Congress from calling departmental
referendum. End Comment.
GOLDBERG