Protesters to the opposition are covered with shields in front of the attacks of tear gas bombs that the Venezuelan National Guard fired to disperse the march destined the Ministry of Interior and Justice in the center of Caracas.May 18, 2017 - Caracas, Venezuela. Adrian Manzol/Zuma Press/PA Images. All rights reserved.
Amid the tumult on the streets of Venezuela, which has cost dozens of lives in the past six weeks, two crucially important, and related, events threaten to spur even greater violence and eclipse all possibility of international engagement aimed at redressing the country’s plight.
One was the announcement on 23 April by Foreign Minister Delcy Rodríguez that the country would withdraw from the Organization of American States (OAS) in response to what the government of Nicolás Maduro sees as “interference” in Venezuela’s internal affairs. The other move, which immediately incensed protesters and brought widespread foreign repudiation, was a presidential decree of 1 May convening an assembly to rewrite the country’s constitution.
These two decisions mark the crossing of a threshold in Venezuela, and the formal abandonment by the “revolutionary” regime in Caracas of representative democracy.
According to Maduro’s blueprint, half of the assembly’s members are to be elected by organisations, such as trade unions and peasant groups, which in all likelihood will be satellites of the ruling United Socialist Party of Venezuela (PSUV). The other half would be elected at the municipal level, under a system (yet to be fully explained, and perhaps even decided) that seems designed to over-represent pro-government forces. Political parties will be excluded, although the precise design of the election system for the assembly is in the hands of the government-controlled National Electoral Council (CNE). It is worth noting that the combination between sector-based and municipal representatives is identical to that in the National Assembly of Cuba.
Taken together, these two decisions mark the crossing of a threshold in Venezuela, and the formal abandonment by the “revolutionary” regime in Caracas of representative democracy. They came in response to pressure, both external and domestic, on the Maduro government to hold elections, restore the separation of powers, free political prisoners, and open a “humanitarian channel” to ease the country’s critical shortages of food, medicines and other basic goods. Rather than accede to demands for genuine negotiations with the opposition Democratic Unity (MUD) alliance – which controls a legislature shorn of power by the Supreme Court (TSJ) – the government has made good on its threat to “deepen the revolution” by creating a so-called “communal state”. What is proposed is similar to the constitutional reform Maduro’s predecessor and mentor Hugo Chávez put to a referendum in 2007, which was rejected by the electorate – Chávez’s sole national electoral defeat in his 14 years in power.
Shotguns firing plastic pellets are also often used at almost point-blank range, and demonstrators caught alone can expect to be severely beaten.
Meanwhile, in response to almost daily demonstrations by the MUD, security forces have clearly been given orders to intensify the repression. By 10 May, six weeks of violence had killed 39 people, according to the PROVEA human rights organisation. At least two demonstrators have been killed and many more injured by riot squads repeatedly firing tear-gas grenades directly into crowds. Police use them to disperse static crowds, often firing in front of and behind protesters, trapping them. Retreating protesters are pursued with volleys of tear gas, which is now frequently being fired into residential or commercial premises, and has even affected schoolchildren and hospital patients. Shotguns firing plastic pellets are also often used at almost point-blank range, and demonstrators caught alone can expect to be severely beaten. Over seven hundred injuries are reported, along with 2,000 arrests, according to legal aid group Foro Penal. Once again, civilian parapolice gangs, armed with pistols, have been deployed to intimidate protesters, some of whom have died of gunshot wounds, often to the head.
In several parts of the country, including the capital, nightfall has brought episodes of looting, which in one particularly violent night in Caracas led to the deaths of at least a dozen people. In Venezuela’s third city, Valencia, looting also took place in broad daylight, with around 100 warehouses, shops and supermarkets systematically ransacked as police and national guard troops looked on.
If greater violence is to be averted, the government will need to abandon its self-serving plan to rewrite the constitution and its use of excessive force against peaceful demonstrators. In turn, opposition forces, together with Venezuela’s regional neighbours, should devise a plan to encourage more pragmatic elements of the regime to negotiate a return to democracy, while offering a potential exit strategy for those in power who can have no future political role and fear imprisonment - or worse - if they are ousted.
A new “communal” constitution
The central demand of the opposition is that a free election be held to allow Venezuelans to determine the way out of the conflict. But the government, whose support in the polls hovers around 20-25 per cent, fears that submitting to a vote would be political suicide. The proposed constituent assembly is a way of evading democratic accountability. It would have supra-constitutional powers that would allow it to dissolve parliament, restructure the state and even govern the country indefinitely, if it so chose, without any need to hold fresh elections. OAS Secretary-General Luis Almagro called the move “a fresh coup d’état” aimed at “consolidating this authoritarian regime”.
A number of Latin American countries have rewritten their constitutions in recent years, with varying results. Colombia’s 1991 constitution, which sprang from a citizens’ movement seeking greater participation, is often cited as a success. More recently, in Bolivia and Ecuador, the process began in the wake of electoral victories for major new political forces – most significantly, an indigenous peoples’ movement led by Evo Morales - but was extremely contentious, with opposition forces steamrollered or excluded at crucial points. In both countries, a majority of voters approved the new constitutions at the polls.
Venezuela’s 1999 constituent assembly was 95 per cent composed of supporters of President Chávez, despite their having won only a little over half the vote. But after Chávez’s failed attempt to reform it in 2007, and the government’s increasing violation of its key provisions, the 1999 constitution came to be seen as a potentially unifying element between the opposition and moderate chavistas. Most constitutional scholars argue that only at times of broad national consensus can a successful constitution be drafted; the alternative is a document that enshrines the victory of one side over another. The present constitution furnishes a “road map” with broad support that would be perilous to abandon at this point of extreme polarisation.
“But preservation of the 1999 constitution could well become a rallying cry for hitherto loyal government supporters who revere Chávez but repudiate his successor.”
Maduro is gambling that a new, “communal” constitution will consolidate the revolution. But preservation of the 1999 constitution could well become a rallying cry for hitherto loyal government supporters who revere Chávez but repudiate his successor. Already the Attorney General (fiscal general) Luisa Ortega Díaz, who recently distanced herself from the regime by saying the “constitutional thread” had been broken following a Supreme Court ruling to strip parliament of its powers, has weighed in. In a 3 May interview with The Wall Street Journal, Ortega said the 1999 constitution could not be improved. Her words were echoed by a pro-government legislator. But aside from these and other cases, so far there is no firm indication of mass defection from the regime, nor has this dissent gone unpunished. Now that the public prosecution service (ministerio público), which Ortega heads, is no longer regarded by the regime as trustworthy, arrested demonstrators are increasingly being arraigned before military tribunals. Dozens have been indicted, and sent to a jail far from their place of residence.
Maduro is gambling that a new, “communal” constitution will consolidate the revolution.
Marching out of the OAS
Maduro’s explicit abandonment of democratic rule has, however, clarified matters abroad. It is increasingly difficult even for the country’s allies in the region – all of which, except Cuba, adhere to democratic norms – to defend its posture, and the group of nations pushing for a restoration of democracy seems bound to grow. At the same time, the Venezuelan government seems prepared to become ever more isolated in the region.
The decision by the OAS Permanent Council on 23 April to convene a consultative meeting of the region’s foreign ministers to discuss the Venezuelan conflict prompted the Maduro government to storm out of the organisation – although the process of disengagement, under OAS rules, takes two years. In a clear sign of the regime’s increasing estrangement, its bid to have the issue debated instead by foreign ministers of the Community of Latin American and Caribbean States (CELAC – a body that includes Venezuela’s ally Cuba but excludes the United States and Canada) fell flat. Only four of 33 CELAC foreign ministers showed up to the meeting on 2 May and it concluded with no resolution. Seven countries boycotted the meeting, and on 4 May Argentina, Brazil, Colombia, Costa Rica, Guatemala, Honduras, Mexico and Paraguay issued a sternly-worded statement to “condemn the excessive use of force on the part of the Venezuelan authorities” against protesters in the streets.
The date and venue for the OAS foreign ministers’ meeting, agreed by the OAS Permanent Council on 26 April, is to be held on May 31st, and Venezuela has announced it will boycott it. The imminence of the organisation’s regular, scheduled General Assembly – in Mexico in late June – means the Venezuelan issue will almost certainly have to be dealt with there, although the gravity of the crisis merits greater urgency.
A way forward
Maduro’s decision to close off the limited democratic space that still exists – on the streets and, potentially, at the ballot box – guarantees that there will be more violent unrest. The opposition is convinced that to abandon street protests at this point would be to permit the consolidation of a dictatorship; it senses that it has nothing left to lose. It will not desist from its mobilisation until, at the very least, there is a binding commitment from the government to hold free and fair elections.
The opposition is convinced that to abandon street protests at this point would be to permit the consolidation of a dictatorship.
Perhaps the greatest potential danger is posed by a chaotic fragmentation of the regime. In the event that the armed forces were to split into roughly equal parts, Venezuela could face civil war. At the very least, there could be a period of violent anarchy on the streets, with armed, pro-government groups and criminal gangs spreading mayhem. The civilian population, already facing hunger and a breakdown of the country’s basic infrastructure, would suffer even greater hardship, and the task of reconstructing Venezuela would become far more taxing. In contrast, a decision by the bulk of the armed forces not to obey government orders to use violence against demonstrators - and to take action against armed civilians acting as parapolice groups - could galvanise both sides into seeking a peaceful and negotiated solution. Already there have been signs of internal dissent, with dozens of officers, including two generals, reportedly under investigation by military intelligence (DGCIM).
International pressure is vital, but needs to be carefully calibrated, with carrots as well as sticks, so as to offer a way out to those members of the regime who may be inclined to negotiate a return to democracy. In this spirit, the National Assembly should consider legislation offering partial, conditional, amnesty to both military and civilian regime members, thereby signalling their intent to seek reconciliation and to avoid witch-hunts in the event of a transition. While the Supreme Court almost certainly would veto this, the bill would send a message that could isolate those, relatively few, who are unlikely to benefit from amnesty due to their involvement in activities such as drug-trafficking or grave human rights abuses. Individual sanctions, already imposed by the United States against certain regime leaders, could be widened to target figures associated with egregious human rights violations, as a bipartisan proposal tabled in the U.S. Senate last week seeks to do.
Genuine negotiations – as opposed to the interminable “dialogues” the government prefers – are essential, and should ideally lead to elections and to an interim government of national unity in which some current officials (perhaps including Attorney General Ortega) could play a part. Any such outcome should include in the short term recognition of the current National Assembly, and respect for its powers. There is no longer any future for the mediation effort led by former Spanish Premier José Luis Rodríguez Zapatero, although some of its elements might be incorporated into a stricter and more effective negotiating structure. This ought to be a primary focus of the OAS initiative, which will require setting up a “group of friends”, including at least one country sympathetic to the Maduro government.
The government itself recently invited the Dominican Republic, El Salvador, Nicaragua, St Vincent and Uruguay to “accompany” its proposed dialogue. The role of the group of friends - which might usefully be expanded under the aegis of the Secretary-General of the United Nations - could include devising a viable asylum plan for those high-ranking regime members who have reason to fear future prosecution, and convincing them to accept it. Another priority for the group would be to adopt immediate measures to address the humanitarian and security crisis.
A decision by the bulk of the armed forces not to obey government orders to use violence against demonstrators [...] could galvanise both sides into seeking a peaceful and negotiated solution."
If not limited to the OAS, the initiative might eventually benefit from the assistance - formal or otherwise - of other governments that have influence with Caracas. This is particularly the case for Cuba, which is not a full OAS member and has a conflict-prone relationship with the organisation, and China. Both these countries would want to see their interests safeguarded in the event of a change of government.
Ultimately, of course, Venezuelans will decide how their country should be run. But with a president who seems determined to deny them the right to do so, they need outside help to produce a negotiated solution and avert a catastrophe.
Previously published by International Crisis Group.
Post-script (26 May, 2017)
After two months of street protests the death toll stands at 58, with thousands more injured. According to the legal aid group Foro Penal, there had been over 2,800 arrests by late May; almost 1,200 people remained in detention, of whom 338 faced trial by military tribunal. In the state of Barinas, where the late Hugo Chavez grew up, the murder of a young demonstrator set off several days of rioting which brought half a dozen more deaths, a wave of looting and the torching of several government buildings.
Attorney-general (fiscal general) Luisa Ortega confirmed the responsibility of the security forces in much of the violence at a press conference she gave on 24 May. Most strikingly, Ortega refuted the government version of the 26 April death of Juan Pernalete, saying he had died after being struck in the chest by a teargas canister, fired at close range by the National Guard (GNB). Government ministers had claimed he had been shot by another demonstrator, using a captive-bolt pistol.
Ortega’s new-found determination to apply the law is a major problem for the government since her office has a monopoly on criminal prosecutions. The transfer of many cases to the military justice system (in contravention of the Venezuelan constitution and international treaties) is a response. President Maduro has also moved to transfer cases of political violence to a government-created ‘Truth Commission’ and prosecutors in various parts of the country have reported that they are being coerced, or bribed, to speak out against Ortega.
On 23 May President Maduro presented the electoral authority (CNE) with the government-designed voting system for the election of his proposed constituent assembly. Of the 545 members, 364 will be elected ‘territorially’ (one per municipality, two for each state capital and seven for Caracas), vastly over-representing lightly populated rural areas where the ruling party is strongest. For example, the Andean state of Merida (pop: 730,000) will have 24 representatives, while Miranda (pop: 2.3m) will have 22. The remaining members will be elected ‘sectorally’, with the ‘sectors’ (workers, fishermen, indigenous people, women etc.) chosen by the government. The election is to be held in July, with elections for state governor (due under the constitution in December last year) set for December 2017. The constituent assembly will, however, have the power to suspend the latter, or even abolish state governors, should it choose to do so.
On the international front the UN Security Council, at the request of the United States, held a closed-door session on 17 May to discuss Venezuela. After the session the chair of the UNSC (currently held by Uruguay) said there was no need for further action. At the regional level, however, OAS foreign ministers are to meet on 31 May to discuss the crisis.
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