We heard some fascinating political and legal analysis on current events from a top-notch specialist in Bolivian law. I’m not naming him here simply because I didn’t get his express permission to do so. Kindly, deal with it. I’m posting the analysis, and then we can all go about researching it as we wish.
Prior to the Ambush in the Pando, Evo expelled almost all of the press. That is a significantly contributing factor as to why we have so little visible evidence and sound accounts of what really happened.
Earlier today on a radio station in Cochabamba it was announced that evidence had been found and confirmed that all individuals who fired weapons at the violent clash were Venezuelan troops. This is believable, because it is well known that the Bolivian military is fiercely uncomfortable with attacking other Bolivians. (This matches an article I saw yesterday. I’ll add a link to that here soon. Need to track it down again.)
Legal Consequences of the Pando Conflict:
After the attack in the Pando, the Pando government was disbanded and Martial Law was instigated in that department. Martial Law is limited by the current Constitution of Bolivia to last no more than 90 days. Under Martial Law, no arrests or charges can be made.
Also under the current Bolivian Constitution, no official can be arrested under any circumstances. Let’s backtrack and define this. Until relatively recently, the Constitution defined Prefects of Departments as being members of the President’s cabinet, government officials, whom the President personally selected. Under President Mesa, however, the Constitution was legally amended so that the Prefects are elected by the people of the departments. The definition of a Prefect remained the same: Prefects are government officials and members of the President’s cabinet.
The Prefect of Pando has been detained by the national authorities under Evo’s leadership. He has not been arrested or charged. He is informally accused, but legally he is only under armed/guarded confinement. He is not at liberty to leave. When a Bolivian citizen is under confinement, the normal response is a writ of habeas corpus. He has not been arrested or charged, however, so habeas corpus does not apply. But! In situations in which a confinement has been initiated but no arrests/charges have been made, the Bolivian Constitution offers a protection: an automatic visa to leave the country.
The legal Constitution of Bolivia promises the Prefect of Pando an automatic visa to leave Bolivia. That’s Latin American legal systems at work if I’ve ever seen it. His family have today filed the case to have that visa processed.
Evo’s team is arguing that because the Prefect was in rebellion, he cannot be considered an “official of the government”. However, this doesn’t hold up legally:
- The Constitution has no provisions for situations of rebellion. That status does not legally exist.
- The Prefect was elected by the people of the Pando. Therefore, he is an official of the government of Bolivia as designated by the people of his department.
- The Prefect is legally a member of the President’s cabinet, but is not subject to the President’s selection or preference (reserved by the department, as shown in point 2). The Prefect is as much of an official of the Bolivian government as every other member of the President’s cabinet.
Unfortunately for Evo, by placing the Prefect of Pando under confinement he has given him a free exit from the country and from possible prosecution. This is what happens when people do not respect their own laws enough to know their own laws. If you make a law and/or if you claim the authority of a law, then you need to know that law and follow that law. Evo’s team does not, and that’s a significant weakness for his leadership and his factions.
Evo can continue this fight against the Prefect. Attempting to keep the Prefect in the country by denying his constitutional claim to an exit visa forces a case into constitutional courts. In Bolivia, cases can take months and sometimes years. Consitutional cases will get heard much faster than civil cases, but they can take just as long… and that’s a long time. IF this case goes before the constitutional courts, then due to its high profile the new Constitution proposed by Evo, which has not yet been approved and put into place by the people of Bolivia, cannot be approved. Evo can fight to keep the Prefect, but his Constitution will be delayed inevitably, and with it his political ideals.
International Support and the Limits thereof:
We keep hearing about the overwhelming solidarity of the continent, represented now by UNASUR and the OAS, for Evo Morales. That may well be an exagerration, and the inclusion of international authorities may prove to be Evo’s political downfall.
Evo set the schedule for negotiating with the opposition leaders in Bolivia. He picked the dates. At the last minute, Evo attempted to change the negotiations for one day earlier than planned. This would have caused the opposition leaders to be unprepared. UNASUR and OAS said, emphatically, “No.” The schedule had been set, it was not appropriate to change it.
August Referendum – Bogus?
In addition, the international agencies are going through the election results from August with a fine-tooth comb. They are being extremely strict. Under these strict counting procedures, Evo’s “mandate” is adding up to be approximately 32% – that is 35% lower than the 67% claimed by the Bolivian government. A more moderate counting which allows for a reasonable amount of casual error suggests that Evo would have earned the necessary 52% to stay in office, but only just, and certainly not a 2/3 mandate.
A more obvious limitation to the security of the election, especially valuable for those of us who are distrustful of even third-party agencies counting votes (it’s scary, when you think about how easily shaded our counting systems are, regardless of nation!), is that in a normal election every polling location is monitored by a representative of every single party in the election. In those situations, if any of those representatives point out a possible problem, then the whole polling table in question is shut down! In August, however, the referendum did not involve specific parties and a selection between candidates – it was a simple Yes / No vote. Representatives from multiple parties were not present at the polling places, thus eliminating one of the more significant protections of the electoral system in Bolivia.
The international agencies are going through the records and finding thousands upon thousands of voters listed as “Mama AAA”, “Papa BBB”, and so on – clearly fraudulent names. Reports are also being submitted of citizens who appeared at their polling location to vote but were informed that someone had already voted that day in their name! Awkward. Now, be rational, guys. In the United States of America wwe have elections upon which the entire world looks because our elections affect the entire world… and yet, we still have dead guys voting in Chicago. Election fraud in Bolivia? Believable.
UNASUR and the OAS, however, are not demanding that the August election be thrown out. They’re going much deeper than that. Now that they’ve been invited in, they’re staying. Evo’s “mandate” will stand, but on their conditions. UNASUR and the OAS are demanding that all voters re-register. From now all, every voter must present their carnet (ID) and give their thumbprint in order to vote. That data will correspond with the data in the brand new voter registration database.
The rest of the continent really doesn’t want to deal with a country firing its legally and constitutionally elected President – and Evo’s presidential election was legal and valid. But forcing a just and accountable system of voter registration? That could solve a ton of future headaches.
The Bolivian Economy:
Bolivia’s national bank has been deliberately suppressing the U.S. Dollar. We’ve all seen this. When the dollar was going down, so did the exchange rate – obviously! When the dollar went back up, however, the exchange rate did not rise in turn… it even went down further. The Bolivian economy is still too tied to the dollar to play these games, and games they are. The economy is in a mess!
Worse still is that Evo was depending on high oil prices, circa $140/barrel, to pay for several of his major projects. He banked on being able to sell Bolivian oil for those prices. Unfortunately for him, oil has dropped back down to circa $100/barrel.
People aren’t exactly thrilled about all of this.
Evo’s Path to Success:
Please note: the following is not my idea! This, too, is coming from the brilliant legal advisor. He’s thought of two very simple and, shockingly, obvious answers to almost all of Evo’s problems.
First, regardless of which option he selects, he needs to give the opposition what they want. All of it. Halt the new Constitution. Give them “autonomy”. Stop interfering with revenues. All of it.
Then, he has two strategic options:
- One month prior to the next election, Evo could resign as president of Bolivia. His vice president would become president. Evo would be legally free to run for re-election.
- Alternatively, he could have made all of his concessions to the opposition conditional on an amendment to the current Constitution which would allow him to run for re-election. That’s it.
Why would these work? Because people are dead tired of the conflict. The opposition will not ever be thrilled with Evo, MAS, or any other socialist regime. They will be content, however, if they are given what they want – and that’s a return to normal without the demands of the new Constitution, the stolen revenues, etc. The moderates within Bolivia (who likely outnumber either faction) and the international community will praise Evo for his compassion, his wisdom, and his commitment to peace. His popularity will skyrocket. Due to the new voter registration systems, there would be no reasonable question of the validity of his election and democratic mandate. He would be elected by a huge majority, and he would have the political backing in his second term to force through the new Constitution (or at the very least a slightly milder version) without significant problem.
The strategy is brilliant. Appease the opposition. Get legally re-elected under the current legal system. Earn the love and respect of millions. THEN drive in the nails of reforms. The problem with all of this, though, is that it interferes with pride. Evo is far too proud to make the temporary, and frankly superficial, concessions. He’ll never do it.
So what will happen instead? Evo cannot take Sant Cruz and cause it to fall as it did Pando. The new Constitution will probably fail. Evo will stay in office, but he won’t be re-elected. He’ll be done, nothing foundational will be solved, and both sides – the indigenous people who experience discrimination and cultural abuse, and the property-owners who have to battle to keep their rights – will continue to suffer. A very boring, but very predictable, stalemate.