The history of the caretakership is full of mishaps and problems that would even be scandalous for a model UN delegation. While some of its own local and international (current and former) allies see it as an obstacle to moving forward with negotiations with chavismo, others feel it delays a process of normalization of the status quo that could benefit some people in Venezuela. Lately, it feels as if everybody is against the “caretaker government,” and that those standing by its side, only do it because they have their hands tied.
But killing the caretaker government isn’t as simple as it may seem. It goes beyond a change in political strategy, because it was built according to one of the best interpretations of the Constitution that could’ve been made at the moment of its conception. We must remember that Maduro’s 2018 election was a key moment of departure from Venezuelan constitutionality, and the decision back then was between accepting Maduro’s deeper dive into authoritarianism by playing his game (an impossible game) or taking one last stand by the Constitution—there are different shades of gray on the reasons to go with either strategy, ojo.
The beauty of the caretakership (yes, beauty, we dare say), was that it organically gave way to the survival of the Constitution. It served a double purpose, both as a bold political move and a bubblegum and duct tape bridge that would allow an organic flow of legality to a new government—unlike a coup d’etat à la Chávez or Carmona’s batshit crazy decree in 2002.
The problem that we now face is that there’s a disconnection between the political strategy and the legal framework. The political strategy has proven stale, dead in the water, kaput. And the legal framework has had consequences that can’t be ignored. As a consequence of that legal framework (and cunning politics), the caretakership has been allowed to control and manage some key foreign assets. While some may think (or say) that the Venezuelan Constitution doesn’t exist, international law will disagree.
As the caretaker government has been losing political support, and because of the failure of its main objective (transition), some analysts and political players think (or wish) the caretakership should simply disappear. But this is like getting married and thinking that when the love dies, the marriage dies. Well, it doesn’t. Ask your lawyer. There are binding obligations with third parties, duties of care, and the like. In the outside world, you just can’t wish the law away.
Standing by the Constitution in such a complex scenario, and using it to guide and model a vehicle to protect, control, and manage Venezuela’s international assets and obligations, as well as to provide a diplomatic body to represent and aid Venezuelan interests abroad, makes all the sense in the world. But you can’t cherry-pick institutionality. The lack of transparency, accountability, and enforcement of the law arising from the caretakership sheds institutionality, leaving us only with politics.
With each year that passes, the legal framework requires more bubblegum and duct tape. As explanations get more complicated and they start relying more on political strategy than constitutionality, the claim and the mandate will become weaker and weaker—as well as the support of the allies that help hold it in place. Since we know today that this is for the long haul, it would be interesting to see someone working on a long-term solution to this mess.
On paper, the Guaidó caretakership was originally intended to last just a few months until a proper election could be set up. The Transition Statute, in its first version, gave some hints on what to do in case this task took longer than expected. Then, the term of the 2015 National Assembly expired, and a life raft had to be built. Here’s a chronology of the life and times of Venezuela’s caretaker government:
The opposition-controlled National Assembly (AN) declares the Presidency vacant after Maduro starts a new term as president based on the unconstitutional election of 2018. Per an interpretation of the Constitution, backed by a majority of the AN and by some of our prominent constitutional experts, the AN Speaker takes over as caretaker president and calls for a new election. The U.S. and more than 50 other countries declare they don’t recognize Maduro as the legitimate president and call for immediate free elections.
At that moment, the Speaker was young lawmaker Juan Guaidó, leader of the Voluntad Popular (VP) caucus. It’s VP’s turn to preside the AN for a year, according to an agreement to rotate the leadership of parliament amid the G4, the group of the four main opposition parties. On January 23rd, Guaidó takes a kind of informal oath during a demonstration in eastern Caracas and becomes a celebrity.
The international career of the caretaker government starts with some broadly televised missteps. Guaidó appoints several representatives (some of them recognized as ambassadors) before some governments that see the AN Speaker as caretaker president, and billionaire Richard Branson sponsors a pop concert in the Colombian border city of Cúcuta to raise funds to solve the humanitarian emergency in Venezuela. The concert is great and reggaeton stars Chyno and Nacho seem to reconcile, but the heat of Norte de Santander turns the Spanish singer Miguel Bosé into a feverish anti-vaxxer, the fundraising goal falls very short, and Guaidó—who crosses the border to Colombia with the apparent help of coyotes linked to paramilitary—fails to make a convoy with a humanitarian cargo enter Venezuelan territory, across the bridges defended by security forces, colectivos and revolutionary titans such as Iris Varela.
Meanwhile, other important developments, harder to cover by the cameras, take place. The AN appoints ad hoc boards for state companies with interests in countries that recognize Guaidó, which means that they can freeze accounts and assets for the Maduro regime. This happens with PDVSA and Bandes, and with Citgo in the U.S., Corporación Venezolana de Guayana in Spain, and Monómeros in Colombia, among others. This is how the parallel story of the Venezuelan assets abroad begins. These kinds of measures make the Bank of England deny Maduro access to Venezuelan gold deposits (because the UK recognizes Guaidó) and paralyzes the Venezuelan participation in the Inter-American Development Bank, where many partners see Maduro as illegitimate.
After several testimonies of members of the Armed Forces defecting to Colombia and asking for refuge there while recognizing Guaidó as commander in chief, a failed rebellion in Caracas ends up with several officers in jail, Leopoldo López in the residence of the Spanish ambassador, a SEBIN director leaving the country (and giving a lot of interviews) and Guaidó fearing detention, which remains so far as a non-consummated threat. The episode shows the lack of solid support for the caretaker government in the Armed Forces.
The AN appoints a “Centro de Gobierno” to execute the functions of the caretaker government.
In the first month and a half of 2020, there were two intertwined and consecutive great political stories: the attack on the National Assembly and the reaction by Juan Guaidó’s camp to it. The Speaker of the National Assembly, who can’t walk into the Parliament building, launched an international tour with the highest-level meetings and most spectacular images. He met with key figures in Europe and Latin America and had the uncommon honor of being “the special guest” at Donald Trump’s State of the Union Address.
The disaster of Operación Gedeón exposed a certain level of knowledge and relative support of Juan Guaidó, another hit to the international prestige of the caretaker government.
An agreement for mutual cooperation between Maduro’s regime, the legitimate National Assembly, and the Pan American Health Organization (PAHO) is signed to face the coronavirus pandemic. This is the closest the caretaker government gets to some sort of acknowledgment by Maduro. The agreement is diluted by the political reality: the regime manages the pandemic as it wants, when it wants, and with the unreliable help of China and Russia.
While chavismo retakes control of the parliament with a questionable legislative election, Guaidó promotes a non-obliging referendum, or consulta popular, to support the continuity of the caretaker government. The event takes place with little participation and ends up showing how much support his cause has lost.
The legislature elected in 2015 loses its premises as a chavista National Assembly presided by Jorge Rodríguez takes over the Legislative Palace. The election of Maduro’s AN violated the constitution and the formal term of the 2015 AN is about to end. Also, at this point, both the National Constitutional Assembly created by the regime in 2017 and the alternative AN board sponsored by Maduro cease to exist.
The 2015 AN begins to meet over Zoom (with many members in exile) and the quorum becomes a problem and another lack of transparency issue. After declaring the new AN illegitimate, a reform of the Transition Statute activates the “Delegate Commission” to rule the partial operation of the legitimate parliament until political change is achieved. Among these new functions, according to the reform, is the declaration of Guaidó as caretaker president until word on the contrary, and the creation of bigger controls on the caretaker presidency, such as those relating to recovered assets.
Amid the countries that had recognized the caretaker president in January 2019, some remain silent or start to describe Guaidó as leader of the opposition instead of caretaker president.
A corruption case involving Paraguayan officers and members of the AN representation in the U.S. is exposed in the press. Julio Borges and Juan Pablo Guanipa demand more transparency from the caretaker government in that case, Citgo and the old Cristallex lawsuit.
According to Reuters, the opposition “approved the replacement of members of the boards overseeing Citgo Petroleum Corp as factions in the movement led by Juan Guaidó try to gain greater influence over Houston-based oil refiner.”
Claiming there had been several irregularities in its administration, the Colombian government takes over Monómeros, the Venezuelan petrochemical company that was under the control of an AN-appointed ad hoc board since March 2019. Julio Borges proposes to submit Monómeros to a joint administration with the World Bank or the IADB. Later, an investigation by Armando.Info exposed how the Venezuelan engineer who connected the caretaker government with Monómeros harmed the company as an advisor, before taking over a leadership role in a competing company.
The tensions within the G4 are more evident as the majority of the opposition decides to participate in the regional elections, which had been dismissed by Guaidó and López. UNT leader Manuel Rosales is back as governor of Zulia. Meanwhile, Henrique Capriles works to retake the leadership of the opposition planning a campaign for a recall referendum in 2022.
Julio Borges quits as foreign relations coordinator for the caretaker government and claims it had become a 1,600-people bureaucracy that pretends to be perpetual. While other representatives abroad had quit before, others like Antonio Ecarri Bolívar in Spain and María T. Belandria in Brazil remain at their posts.
In an extraordinary session of the National Assembly elected in 2015, Primero Justicia fails in its attempt to reform the Transition Statute to drastically reduce the competencies of the caretaker government, and Guaidó fails in his effort to save his actions from parliamentary control. The best accord is one in which nobody is completely happy. All parties (except Vente Venezuela) voted in favor of the continuation of the caretaker government along with some reforms of the Statute. Guaidó keeps the capacity to appoint foreign representatives and ad hoc boards, but with more control from the AN (which will also have the faculty to establish trusts to protect foreign assets). The foreign representatives will exist only in the countries that still recognize Guaidó as caretaker president, and several commissions will cease their functions. Guaidó and the special attorney general must make monthly reports to account for the assets they control abroad.
This vote extended the rule of the delegate commission for one more year. The U.S. stood behind the decision.
The next day, January 5th, Guaidó was ratified as speaker of the AN and, in consequence, as caretaker president.
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