Delay and Escalation in Venezuela’s Recall Drama

The Recall Referendum is entering its most dangerous phase, as the verification process continues amidst controversy, opposition and government heat up their discourse, and the the opposition mounts a provocative demonstration.

The Delayed Decision

The two trains that appear to be moving towards a head-on collision are getting closer, but seem to have slowed down a bit. That is, the trains, which are the Chavez government and its supporters on one side and the opposition on the other are still heading for a crash, but seem to have slowed down a bit because rather than making an actual decision, the National Electoral Council (CNE) keeps postponing it. First, the decision was delayed because the opposition took its time in submitting the recall referendum signatures. Then, the CNE did not begin the 30-day verification clock until it returned from vacation on January 12. then, shortly before the deadline expired, the CNE announced that it had too many signatures to verify (over 7.5 million signatures for 67 recall referenda) that the tabulation could not be announced until the end of February.

Now, with anticipation and anxiety growing on all sides, last Tuesday, February 24, the CNE made a crucial decision as to how to handle over 2.5 million signatures where the personal information of the signer (printed name, birth date, and identification number) appear to have been filled out by the same person on the entire form. These forms have come to be known as the “flat” or “assisted” petition forms. The CNE decided that these forms would be re-evaluated in its “Superior Technical Committee,” (CTS) the committee that double-checks all forms that upon first verification appeared to have problems. Despite misleading information from some sources, these signatures were not invalidated. Rather, the CNE also said that the CTS, upon further verification, would pass the signatures on to a “reparo,” which is the five day process in which citizens may look their name up on a published list of referendum signers say whether their name really should be on the list of signers.

However, the “reparo” process is somewhat complicated because over 600 centers have to be set up where people can file their claims with the CNE. What this means is further delays, such that the actual objection process will not begin until March 11 and will last until March 15. The objections then have to be processed, which will take at least one week, and between March 22 and 30 the CNE is now expected to make its final verdict on whether there will be a recall referendum against the president. If it rules that there will be a referendum, the CNE is supposed to have 97 days to organize it, which means that the referendum date, barring further delays, will now be the first week of July. This schedule could be delayed further, especially if the President makes good on his promise to challenge the CNE’s decision for a referendum in the Supreme Court, which could issue an injunction until it rules on the matter.

Aside from the opposition’s general impatience with removing President Chavez from office, it is worried about a constitutional limitation, which says that if the president is removed from office after four years of his term have passed, then there will be no new presidential election and the vice-president would complete the president’s term. In the case of Chavez, his four years in office will be completed on August 19, 2004, a mere six weeks before the current date for a recall. Thus, a referendum after August 19 would, in the mind of the opposition, make the effort for the recall referendum come to nothing.

The Verification Process

Given the foregoing, it is thus understandable that members of the opposition are saying that the CNE’s decision to not automatically recognize the signatures constitutes an institutional coup d’état. To them, it puts their entire effort into question. The CNE ruling passed in a 3-2 vote, where the CNE president, Francisco Carrasquero, who was considered to be an independent, voted with the pro-Chavez side. According to the opposition, this vote violated the CNE’s own internal rules. Two reasons are usually mentioned.

First, there is no CNE rule which says that signers had to fill out their own personal data on the petition form when signing in favor of a recall referendum. Only the signature and the finger print had to be provided by the citizen requesting the referendum. According to this argument, the rest of the data could be filled by someone else. Second, Venezuelan law stipulates that when an issue is in doubt, such as the authenticity of a signature, then the public administration is supposed to assume the honesty and good faith of the signer.

The “good faith” argument is relatively weak because one has to ask just how far that good faith should go. The opposition seems to imply that the god faith clause means that no verification of signatures is necessary at all. However, the law does say that good faith holds only as long as there is no evidence that betrays this good faith.[1] It would seem, though, that a form with ten signatures, where all of the personal data is filled out by the same person, does constitute possible evidence of fraud. (After all, Venezuelan signatures are so illegible that anyone could of have invented a few squiggles and claimed that these constitute someone’s signature, making a comparison of signature handwriting on one form virtually impossible.)

Chavistas respond to the argument about the lack of rules governing “flat” forms by saying that the requirement to fill out the form oneself was part of the instructions that the CNE provided prior to the signature collection process. Also, the instructions said that if someone filled out the data other than the signer, then the one helping the signer should indicate the reason (such as physical impairment) and also sign off on the form as having assisted.

The big question, of course, is whether these instructions, which were apparently provided to CNE officials at the signature collection tables and in public television announcements, have any legal standing. It does not seem that these were part of the referendum rules at any point and thus cannot be used as a reason for invalidating the signature. But notice: the CNE has not yet invalidated any signatures that were on the so-called flat forms. Rather, the CNE merely said that it needs additional evidence that the person who claims to have signed the form actually did so him or herself.

A much stronger reason for casting suspicion on the “flat” or “assisted” signatures is that as long as there is no actual verification of signatures and fingerprints, it is practically impossible to know whether the signature and fingerprint belong to the person whose data appears there. The CNE did not have the time or resources to cross-check each signature and fingerprint against a database of these. As a result, it had to use more superficial methods, which could involve a simple check of the handwriting – note: not to invalidate the signature, but to set it aside for further verification. This is precisely what the CNE decided to do.

The opposition’s cry of foul, that rules are being applied that were not previously agreed to, is false because so far none of the “flat” signatures have been invalidated. The rules were only about the invalidation of signatures. No rules had been established for the internal processing of signatures. So now the next major issue is how to actually verify the suspicious signatures. The opposition says that taking them to a “reparo” (repair or objection) process would potentially invalidate signatures that are perfectly legitimate. This is true. If someone did legitimately sign the form, but had someone else fill it out for them, then the signature should still be counted as valid, even if that person, for whatever reason, did not have the opportunity to confirm their signature in the reparo process. The actual rules do not prohibit such signatures.

So what are the alternatives to a reparo process? Another possibility would be to verify each and every one of the suspicious signatures and/or fingerprints against a database of these. This option, however, is unviable because it is too time consuming and would violate the deadlines even more. Another alternative, one which the OAS and Carter Center suggested and which opposition leaders have accepted, is to take a statistical sample of the forms and verify the signatures/fingerprints of this sample. For such a sample to be statistically valid (with a margin of error of around 3%), one could examine around 500 forms (since the suspicion is directed against the entire form, not individual signatures) out of a universe of 148,000 forms in the case of the presidential recall.

The CNE directors, however, rejected this idea presumably (so far no clear statements have been issued on the proposal, other than that it was rejected) because the CNE believes it is its duty to provide an accurate count of the total number of valid signatures and not just a statistical estimate. However, given that signatures invalidated after a reparo will be of questionable legality, it will potentially throw the entire result into serious question. Statistical sampling, though, could have been made palatable to both sides, which is, in Venezuela’s current atmosphere, one of the most important considerations one can make. Now, if the CNE decides against a referendum because not enough signatures were valid at the end of the reparo process, the opposition will almost definitely go crazy. The trains that appeared to be heading for a collision will turn out to be on the same track.

Opposition and Pro-Government Discourses

Perhaps more disturbing than the CNE’s failure to find a solution that would maintain the peace in Venezuela is that both sides in the conflict continue to use discourses that contribute towards an escalation of the conflict, rather than towards defusing it.

The first problem with both discourses is that neither takes the other seriously. That is, Chavistas are absolutely convinced that the opposition engaged in massive fraud and that all of their claims about the validity of the signatures they collected are outright lies and constitute further evidence of fraud. The opposition, on the other hand, is absolutely convinced that they have more than enough signatures for a recall referendum and that all claims by Chavistas to the contrary are lies and proof positive that Chavistas are attempting to invalidate, via fraud, their valid signatures.

A more or less direct corollary of this belief of the opposition is that anyone who believes in the Chavista discourse is, by definition, being ordered to do so by Chavez. The clear implication being that they cannot think for themselves. Examples of this element in the opposition’s discourse abound, such as when Enrique Mendoza recently said that the CNE was “following the president’s instructions” when it ruled that the “flat” signatures should be re-verified. Variations of this theme include the argument that Chavez controls all branches of government and that this is what makes the Chavez government a dictatorship.[2]

A common corollary on the Chavista side of its belief is its constant re-hashing of irrelevant fraud claims. Chavistas keep on pointing out how many deceased, minors, foreigners, and double signers there are, as proof positive that the opposition was engaged in massive fraud. While such evidence is important and such signatures must be eliminated, they are not the signatures that will be the deciding factor in the CNE verdict about a referendum. The CNE has eliminated these signatures upon a simple cross-check against the voter registry. The opposition, in particualr as represented by the opposition’s logistical arm in the referendum process, the organization Sumate, has repeatedly said that it has no objections against the striking of such signatures from the total. Chavistas’ constant mentioning of these examples of opposition cheating does nothing to contribute to resolving the conflict. Rather, it inflames it because people in the opposition feel that the issue is being raised to disqualify the entire opposition, regardless of whether they participated in faking signatures or not.

The danger of neither side taking the other seriously lies in the assumptions that begin to proliferate about the other side. Since nothing that the other side says can be taken at face value, dialogue between the sides becomes impossible. Each side is thus forced to make assumptions about the real motivations of the other side, which inevitably leads to false assumptions and a failure to communicate. In the end, the lack of communication means that problems have to be resolved by other means, such as pure power, beginning with political and economic power and possibly ending in physical force.

In other words, if Venezuelans want to preserve the peace in Venezuela (and I believe that a majority on each side does), then they have to take the other’s concerns seriously. In the case of the conflict over the referendum signatures, this means taking seriously the opposition’s belief that is has enough signatures and the Chavista belief that the opposition does not have enough. Ironically, this means Chavistas must believe anti-Chavistas when they say that they do not believe Chavistas, and vice-versa.

More concretely, the implication is that when verifying the signatures both sides should operate on the assumption that the truth about the signatures should be known, but this should be done in a way that does not make a recall referendum impossible. That is, the CNE should find ways to verify the signatures that will satisfy the doubts of the Chavistas, but do so in a way that is as much as is possible within its own deadlines.  As stated earlier, taking a representative sample of the questionable signature forms and verifying these against signature and fingerprint databases could have represented a mutually satisfactory solution.

What next?

Unfortunately, it is now probably too late for such a solution. Instead, the opposition appears to be pursuing a double strategy now. On the one hand they are nobly saying that they will bite the bullet and accept the reparo process as the CNE has mandated. The opposition’s acquiescence to this is extremely important because it leaves open the possibility that a disastrous confrontation between government and opposition might still be avoided. On the other hand, the opposition is still willfully confronting the government with irresponsible actions.

For example, for today, February 27, the opposition organized a demonstration to go from the city’s east to the city center where President Chavez is hosting a summit meeting of the Group of 15.[3] The central government declared, unequivocally, that the demonstration could go ahead, but not all the way to the location where the heads of state were meeting. Rather, the demonstration had to stop approximately one kilometer away from the meeting. Instead of heeding this requirement, the opposition said it would proceed all the way to the meeting place, regardless of the obstacles the government placed to the demonstration. No country in the world would allow an oppositional demonstration to proceed to the front door of a major summit meeting of heads of state.

The Venezuelan government’s prohibition thus is nothing out of the ordinary. Nonetheless, the opposition marched as far as it could and once it met up with the National Guard forces impeding its way, individual demonstrators tried to push on. The National Guard then proceeded to disperse the crowd with tear gas and plastic bullets. While Venezuela’s National Guard still has much to learn as to how to control crowds, one has to keep in mind that its reaction was more subdued than it was during previous Venezuelan governments, where crowd control was almost always conducted with live ammunition and demonstrators were killed at a rate of almost one per month.

Of course, Venezuela’s oppositional private mass media is playing right along and is trying to claim that the government’s reaction to an unpermitted demonstration proves, once again, that the Chavez government is a dictatorship. The commentaries in the private mass media are almost non-stop, saying that the Chavez government is “fascist,” “totalitarian,” “dictatorial,” etc. The Spanish CNN, also once again, comes close to parroting the national media’s line by not mentioning in their report that the opposition demonstration did not have a permit to enter the area where the heads of state were meeting.

Chavez supporters are arguing that these types of actions and media amplification are intended to provoke and are being used as a conscious insurance against a possible failure to achieve the recall referendum. That is, the aim is to keep the atmosphere of tension high so that if the recall referendum is denied, the hope is that the potential for a violent overthrow of the government will be greater than if there is calm until the date of the final decision.

While such hypotheses might be true (they proved to be true during the April 2002 coup attempt) and should be protected against, it would be a mistake for Chavez and his supporters to portray the entire opposition as pursuing this strategy, just as the opposition uses a diametrically opposed but parallel discourse. Such a discourse only accelerates the trains that are heading towards each other. Unfortunately, this is precisely what Chavez, his supporters, and the opposition are all once again doing.

See also previous analysis/opinion articles by Gregory Wilpert on the recall process:

[1] Law on the simplification of administrative procedures, article 13.

[2] While it is true that Chavez supporters have a majority in all branches of government (there are five in Venezuela: legislature, executive, judiciary, citizen power, and electoral power), this does not automatically mean that Chavez “control” them.

[3] The Group of 15 are 19 developing countries, including Brazil, Colombia, Argentina, Peru, India, Zimbabwe, Iran, Peru, Malaysia, Algeria, among others.