The If’s, When’s and How’s of Regime Change

Turns out the MUD is busy discussing how to change the government as you read this. They have to come up with the Mother of all Plans.

Amid the chaos that was Caracas yesterday – power outages in half the city and a proper little street riot in Petare – good news has been trickling forth from the Mesa de Unidad rumor mill.

Sources were able to confirm today that, contrary to what this TalCual article from last week says, meetings between different factions of the MUD have, in fact, been taking place, to reach consensus over what constitutional mechanism to use to get regime change in 2016. There’s two major MUD-wide encerronas set to happen on Wednesday and Saturday of this week. So we could be looking at an important announcement from the MUD as early as Sunday or Monday.  

Popular backing for any proposal seeking to end Maduro’s term and ushering in a new government is a sure bet. Just look at how many people showed up to this past Saturday’s concert in support of Leopoldo López and political prisoners, calling for Maduro’s resignation. Similarly, Henrique Capriles’s national tour to rally around the Recall Referendum has been drawing big big crowds.

But there has to be just one plan that all political leaders can get behind and effectively channel collective action around. It also has to be genuinely disinterested (the legitimate time for candidacies will come later), and devoid of any shred of a personal agenda. That’s how we won 6D. That’s why we won 6D.

The challenge for MUD is far from easy, and it has less to do with internal political negotiations than it does with coming up with a fully worked out and viable plan of action that will touch on all the key points (regime change, amnesty for political prisoners, ensuring governability) while anticipating all possible obstacles and getting the timing right. Remember gubernatorial elections are slated to happen in December as well. We’ve got one shot, and we better get this right.

So here are the constitutional means for achieving a change in government that are being discussed, in no particular order:

Recall referendum

Article 72 of the Venezuelan Constitution says that any elected official can be recalled from office after half of his/her term has elapsed, through the activation of a referendum.

First, the National Elections Council (CNE) must organize a signature collection drive, during which valid signatures of 20% of registered voters must be collected. That’s around 3.9 of Venezuela’s 19.5 million registered voters. If validated by the CNE, the signatures would trigger a national referendum in which at least 25% of the voting population, that is, around 4,8 million Venezuelans, must participate. To revoke Maduro’s mandate, the vote must meet two criteria:

  • The “Yes” side must get more votes than the “No” side

   and

  • The “Yes” side must get more votes that Maduro got when he was first elected: 7,587,579.

This second condition makes some people nervous. In 2013, Henrique Capriles got 7,363,980, and on 6D, the opposition received a quarter-million more votes than Maduro did in 2013, so this sounds doable – though clearly it’s no tiro al suelo.

Some tactical caveats. First of all, there’s the issue of timing. The law states that if the President’s mandate gets revoked before the 4th year of his 6-year term, new elections must be announced within a month. After the President’s 4th year in office, the Vice President, meaning Aristóbulo (por ahora) would finish out the term.

The thing is, there’s a technical debate over when exactly Maduro’s term began, since some say it started on January 10, 2013 (when a dying Chávez swore him in from Cuba), and some argue it was April 19, 2013, the day he got sworn into office. So either we’re already entitled to call for a recall, or we have to wait until April 19th. And our deadline for getting regime change through a recall is either January 10th, 2017 or April 19th next year. Depending.

Ultimately, the TSJ or the CNE will have to decide at which point Maduro’s mandate is halfway through, and when the referendum would trigger new elections. In either case, pursuing the referendum leaves a measure of control up to Chavista-dominated institutions, who could deploy all sorts of delaying tactics to run out the opposition’s clock and ensure a chavismo-led transition.

Another hot-button issue involves the validation of signatures. When the referendum option was invoked back in 2003, the National Electoral Council (CNE) did everything in its power to buy time so that Hugo Chávez, whose popularity was at an all-time low since his election, could bounce back in the polls. For this purpose, CNE devised a method of reparo, meaning, the option for any citizen who signed in favor of activating the referendum to take back their signature in case it was forged.  

In the absence of any legislation that properly regulates recall referenda, in 2007, CNE published what were supposedly temporary norms, which state, among other complications,  that signature collections must be done with the aid of a fingerprint scanner. Unless the current National Assembly sanctions a law regulating referendum procedures, this CNE norm would still be in effect.

This is both good and bad: although biometric scanners could certainly dissuade some public employees from signing, for fear of retaliation, they also render the entire reparo process moot, since a fingerprint scan is aimed precisely at avoiding forgeries in the first place. All this to say that CNE has tons of bullshit procedural artillery and grayish legal zones with which to stonewall this process till Aristóbulo time rolls around. 

That said, just the fact that a recall referendum was already invoked back in 2004 is a big plus. It not only sets a procedural precedent for how the CNE should handle things this time around, but it also remains a reference in the minds of Venezuelans who already experienced it. And an AN-sanctioned law on Referenda could be a useful tool for playing around with the timing and bypassing other CNE obstacles, so it’s a definite plus in favor of this option.

So far, the recall referendum option has been heavily promoted by Henrique Capriles and – after an eyebrow-raising delay – by his party, Primero Justicia.

Amendment to Shorten Presidential Term and impose Term Limits

Art. 341 of the Constitution allows for said document to be amended through a national referendum, once the National Assembly has formally petitioned the CNE through a simple majority vote. After the petition is submitted, CNE must subject the motion to amend the Constitution to a national vote within 30 days.

The goal of this mechanism, as announced by Causa R deputy Andrés Velásquez and, later, by National Assembly President Henry Ramos Allup, would be to shorten the presidential term – including Maduro’s – from the current six years to a proposed four, and to also eliminate the possibility of indefinite reelection, something that was added to the constitution following a Chavez-initiated 2009 referendum. Additionally, the amendment could shorten term limits for AN legislators and TSJ magistrates.

Ramos Allup argues that the advantages of this option lie in its simplicity, since its activation only requires a simple majority vote from an overwhelmingly opposition-controlled legislature.

The achilles heel to this proposal, cited by legal scholars, is the high probability that TSJ would rule that the proposed changes amount to a constitutional reform, rather than an amendment, which requires a 2/3rd A.N. majority to call – which TSJ could also argue the opposition no longer has, after the disincorporation of the Amazonas state deputies. They could also counter that no amendment can apply retroactively to a presidential term already in progress – which would make the change come into force after 2019.

Then again… theres the 2009 precedent set by Chávez himself, when he applied the indefinite reelection ammendment to his own mandate while his presidential term was already in progress. So…there’s arguments for pushing this.

The amendment option has some political traction these days. As we mentioned, Henry Ramos and his Acción Democrática party have publicly supported it, as well as Causa R, and Copei. Capriles proposed that MUD should actively pursue both this and the Recall Referendum strategy in parallel.

Constituent Assembly

Back in 2014, Leopoldo López’s party, Voluntad Popular, threw all of its communicational muscle behind a call for a Constituent Assembly. Art. 347 of the Constitution says that the Venezuelan people may invoke a “transformation of the State” though the activation of a constituent assembly, which would supersede the current institutional system and create a new legal framework.

There is settled jurisprudence in Venezuela establishing that a constituyente has supra-constitutional authority: its decisions cannot be questioned by any established legal body, because its role is precisely to re-establish those bodies.

Triggering this process requires either ⅔ of the AN votes, 15% of registered voters, ⅔ of all municipal legislatures, or a call by the President himself, after which a national referendum must consult all Venezuelans whether or not they want to dissolve the existing constitution and start again from scratch. The following steps involve holding elections for a National Constituent Assembly, and then, after they have drafted a new constitution, precedent calls for a further election to approve it. So, lots of steps, lots of elections, and a new constitution, in order to change the government.

So far this year, Voluntad Popular hasn’t mentioned the Constituyente option. The Constituyente is MUD’s nuclear option, but it has fallen somewhat out of the national conversation, with VP focused on the Amnesty Law, in defense of political prisoners including Leopoldo López. UNT and AD have steadfastly supported this legislative initiative, despite Maduro’s claims that he would never sign it into law – itself illegal, since the Assembly can override a presidential veto in Venezuela with a simple majority vote.

Resignation

Art. 233 sets out what is certainly the most straightforward of all the mechanisms in the constitution. If Maduro simply resigns before the 4th year of his mandate, an absolute vacancy is produced in the presidency and new elections have to be held within 30 days. “But he’ll never resign!” you say. And I say the day the rest of chavismo’s factional chiefs decide they’re better off without him than with him, impossible things become possible. Also, there would be an inevitable, 30-day Aristóbulo presidency should this ever happen.  

Abandono del Cargo

Henry Ramos has mused out loud that under Art. 233 the Assembly can also simply declare, with a simple majority, that the president has abandoned his post, which would again trigger an absolute vacancy and elections within 30 days. We’re in the territory of Political Fiction here, though. It doesn’t work like that in the real world.

Pitfalls

Some obstacles are cross-cutting. For one, there’s CNE’s budget. The chavista AN last year allocated just Bs.13 million for the purposes of elections. According to journalist Eugenio Martínez, the estimated cost for holding Gubernatorial elections, which are technically slated for December of 2016, would hover around Bs. 900 million, almost 70 times the current allocation. So there’s a good possibility that CNE could play the budget card to delay a national referendum.

Sources tell me that, while the Caracas opposphere is blinded by discussions of regime change mechanisms, party activists all around the country are already busy planning for regional elections. Caracas feels far away to a lot of these people: winning a state governorship is the closest they will get to holding actual power, regardless of who grabs the coroto in Miraflores.

It’s easy to discount this, but when it comes time to mobilize on a National basis for regime change, having your regional activists off doing something else will not help. Especially in a recall vote scenario, the margin matters: you can’t get 7.6 million Yes votes out of Chacao, Lechería, northern Valencia and northern Maracaibo alone.

That brings me to what I see as the most important point in this discussion: political incentives for proper mobilization come election time.

We know that, come election day, get out the vote efforts and an effective campaign strategy are important. But the key to success is getting your grassroots political leadership to defend every single vote at the polling stations on the day of the election.

When there’s an incentive for sharing the spoils of victory, like on 6D, when all 87 voting circuits, and party leaderships at the local level were up for grabs, people hustle. If, for example, a national opposition campaign has to be deployed in defense of a YES vote, these kinds of concrete incentives are a lot weaker.

Whatever the MUD’s plan of action for 2016 ends up being, it  must take this into account, especially if there’s a real possibility that we will have to settle for either a referendum vote or a governor’s election, but not both.

So, way to go MUD, we look forward to your reaching a broad consensus. In fact, we hope you end up swimming in it, ladling giant heaping spoonfuls of consensus over each other and rubbing it all over your bodies. We hope there’s way too much consensus to know what to do with, consensus coming out the wazoo and every other man and lady-part around. Consesuspalooza. Miss Consenzuela. Consensuayshion. You get my point. 

Caracas Chronicles is 100% reader-supported. Support independent Venezuelan journalism by making a donation.