Analysts don’t believe that the new electoral law approved by the Honduran National Congress on May 25 can prevent election fraud or forestall another political crisis when general elections are held in November this year.
By Eva Galeas
Photos by Martín Cálix
On May 25, an overwhelming majority of the National Congress approved (110 votes in favor and six against) six pending chapters of the new electoral law, after the National Party (PN), Liberal Party (PL) and Liberty and Refoundation Party (Libre) reached an agreement on the matter. This seems to be a response to international pressure from the United Nations (UN), the Organization of American States (OAS), the European Union (EU) and the United States (US). However, the new election law reforms do not address ongoing issues such as the casting of ballots and presidential term limits.
The sticking point that had delayed the approval of these reforms was the make-up of the polling station oversight boards. Under the previous law, representatives of each political party staffed each oversight board. However, Article 46 of the new law, published on May 27 in La Gaceta, the Honduran government’s official register, establishes that general election polling stations will have an oversight board with five voting members (each with an alternate) named by their respective political parties.
Article 46 of the new law states that the oversight board for each polling station will consist of a president, a secretary, and a ballot checker, and these positions will be filled by representatives of the political parties that received the most votes in the presidential primaries. This year the PN, the PL and Libre parties were the only parties to hold primaries. The remaining two positions on each oversight board will be appointed by the National Electoral Council (Consejo Nacional Electoral – CNE) from a list of nominees submitted by other political parties with candidates in the election. These will be rotating appointments, with priority given to the parties with the most seniority.
The CNE registered 14 political parties for the November 2021 general elections. Chapters VI and VII of the new law now allow independent candidates to participate in elections. The 14 registered parties are: the Liberal Party (PL), National party (PN), Innovation and Democratic Social Unity Party (PINU), Christian Democratic Party (DC), Democratic Unification Party (UD), Anti-corruption Party (PAC), Honduran Patriotic Alliance Party (Alianza), Liberty and Refoundation (Libre), Broad Front Party, Party of Christian Social Centre, New Route for Honduras Party, Savior Party of Honduras, Democratic Liberation Party of Honduras, and the We’re All Honduras Party.
Protection for candidates implicated in corruption
In an interview with Contracorriente, Doris Gutiérrez, a PINU congressional representative, said that these electoral law reforms effectively protect corrupt members of congress by prohibiting the prosecution of candidates for public office, and prohibiting the removal of elected officials until convicted of illegal activities.
The reforms may also protect candidates for other offices. The National Party candidate for president, Nasry “Tito” Asfura, currently has two open legal cases for alleged crimes. The interpretation of these specific provisions is controversial, because the language used is not clear on whether Asfura can be disqualified from running for president because of the criminal charges he faces.
Asfura, the current mayor of Tegucigalpa, is facing pre-trial proceedings initiated by the Public Prosecutor’s Office, which has charged him with money laundering, embezzlement of public funds, violation of the duties of public officials, falsification of documents, and fraud.
In an interview with Contracorriente, Salvador Nasralla, the leader of the Savior Party of Honduras, said that the National Party had positioned Asfura as a fall-guy candidate that they can sacrifice and replace with Juan Orlando Hernández because “Hernández has been told by the gringos that he’ll go to jail the day he leaves office.”
Nasralla claims that the electoral reforms “… enable everyone who has committed robbery, murder, trafficking and money laundering [to run for public office]. The reforms only benefit organized crime and drug traffickers, who now have free access to place more drug traffickers and thieves in the National Congress.”
Rafael Jerez, the legal advisor for the Association for a More Just Society (ASJ), contends that Article 311 of the new law regarding disqualification due to ongoing legal proceedings, specifically benefits the three parties that sponsored the reforms (the National Party, the Liberal Party and the Libre Party), since “their leaders are implicated in ongoing legal proceedings. This only promotes impunity and debilitates the public administration function.”
But for Luis Daniel León, the director of the Netherlands Institute for Multiparty Democracy (NIMD), this new law does not shield public officials. “The old law has an article allowing any candidate to run for public office as long as they have not been convicted. The new law has an article with the same language. For example, the National Party candidate is the subject of ongoing legal proceedings and is still a candidate; anyone can run for office until declared guilty,” he said, alluding to Article 311. He claims that this isn’t an impunity issue and that this is nothing new because the previous law had the same provision.
Gracia María Bertrand, an attorney and expert in criminal law, as well as a judge in a Honduran sentencing court, told Contracorriente, “The new law benefits candidates who have been indicted for crimes since it does not disqualify them from running for office until they have been convicted.”
Article 311 indicates that legal proceedings against any candidate for elected office that may be ongoing from the date of candidate registration through the certification of the election results, do not disqualify the candidate unless the candidate was the main perpetrator of the offense and there is a final conviction to that effect, or if the legal proceedings pertain to the commission of a crime or violation of the Constitution of the Republic.
Bertrand, who is also vice-president of the Northern Chapter of the Honduran Bar Association, says, “The new electoral law does not inspire confidence in this rigged electoral process that continues to benefit the same majority parties, represented by legislators who use their offices for their own purposes to the detriment of a participatory democracy.”
Election results transmission
Representative Doris Gutiérrez warned that the whole process, both at the municipal and departmental levels, will be controlled by the three parties that also dominate the CNE oversight boards, “Not much can be expected in terms of transparency and the objective transmission of election results.”
She says that the National, Liberal and Libre parties are responsible for creating a law that is exclusionary, and “in some ways, anti-democratic.” She hopes that the emerging, minority parties will challenge the new law on the basis of unconstitutionality, challenges that may not succeed. Gutiérrez believes that, “Things will only get done when these parties are excluded,” and that the Constitutional Court is controlled by the National Party.
ASJ’s legal advisor, Rafael Jerez, says that one positive aspect of the law is the provision mandating the CNE obtain an election results transmission system that can produce same-day vote tallies.
Still, Jerez believes that the new electoral law does not reflect the country’s reality, which has caused many to distrust the election process. “In the long run, this distrust leads to public protests, deaths, injuries and a bad international image for Honduras.”
He also doesn’t think that the new law reflects the public’s needs. The National Congress should have approved all of the reforms in the second version of the bill debated last year. “Approval of all those necessary reforms would have responded to public demands,” he says.
Attempting to rally his base, Salvador Nasralla last week urged his supporters on social media to join a motorcade protest that never materialized. He demanded representation at all polling stations and threatened not to participate in the presidential elections as the Savior Party of Honduras candidate. “Everything is set for the drug traffickers to continue governing more freely than ever and without opposition. I am the only real opposition here and this [electoral reform] has eliminated me from the polling stations,” he told Contracorriente.
Rafael Jerez thinks that the National Party candidate, Nasry Asfura, has a very good chance of winning the presidency due to his strong organization and the support network he developed through the political clientelism he practiced as mayor. He also believes that it would be more advantageous to the ruling party if Salvador Nasralla doesn’t participate in the general elections.
Eugenio Sosa, a researcher with the Sociology Department of the National Autonomous University of Honduras, characterizes Salvador Nasralla as “anti-party, not anti-capitalist, because he’s against everyone.” He claims that Nasralla’s withdrawal from the race could benefit Libre and the Liberal Party the most, “because Nasralla’s supporters will mostly swing to Libre, and some to the Liberals.” If Nasralla withdraws, the battle between the three major parties will become even more competitive. “It’s likely that the National Party and Libre candidates will be the main contenders for the presidency.”
Sosa believes that the electoral reforms address the National Party’s current scope of control over the electoral process. “This control is now spread more equally among the three major political parties. Libre’s strategy is one of systemic opposition to gain leverage and negotiate within the system. Libre will take an opposing stance on an issue, and then strike a deal with the major parties for a share of the power,” he said.
Sosa characterizes these electoral reforms as “adjustments” that establish a three-party system in which Salvador Nasralla was the loser. The repealed law “worked very well for a bipartisan system … and [these reforms] will result in greater stability for the country,” he said.
Sosa acknowledges that unlike the other minority parties, Salvador Nasralla’s political future was indeed damaged by the electoral reforms. “Frankly, he has a significant base of voters, unlike some other shell parties.” Under the new law, there is only a 25% chance that Nasralla will be represented at the polling stations, says Sosa. In that sense, “The law is not totally democratic because it excludes minority elements. Backroom deals were struck to institute these reforms and achieve greater political stability through a system dominated by three political parties.”
NIMD’s director, Luis Daniel León, said the new electoral law reflects a political agreement between the major political parties to avoid another post-election conflict in November. León doesn’t consider this an entirely new law, but rather a reform of the existing electoral law. However, León believes that the composition of the polling place oversight boards should prevent “voter identification fraud, vote selling and manipulation of election certifications.” Having five representatives at the polling stations instead of 14 should provide better control over the process, he says, although it cannot ensure that fraud won’t occur.
León notes that the new law suppresses the mass growth of political parties that do not contribute anything to the country’s electoral process. “This reduces the central government’s election-related costs by more than US$333,000, and increases the funding available to the major parties.”
He contends that starting a political party has become something of a business in Honduras, since this allows the party to obtain funding or a modicum of power, even though it has no intention of winning elections.
Pressure from the United States and international organizations
“The implementation of these reforms is the next important step towards a transparent electoral process in November,” tweeted the U.S. Embassy in Honduras. The president of the National Congress, Mauricio Oliva, also tweeted, “Achieving this consensus means that we can correct course and move forward as a democracy, society and country.”
A few days before the new electoral law was approved, Mario Perez, a member of the National Congress Board of Directors, stated that [the National Party] refused to accept all the reforms proposed by the Liberal Party and Libre, because “We’re not fools.” However, shortly after the National Congress approved an accelerated schedule for implementing ZEDEs in Honduras, 61 of the 128 National Party congressional representatives agreed to approve the electoral reforms. ZEDEs (Employment and Economic Development Zones) are special economic development zones that cede territorial sovereignty to ZEDE operators.
Rafael Jerez notes that the U.S. has been an important supporter of the new electoral law, although he believes that the international community may have questioned the law if the details had been socialized more extensively. In this regard, Luis Daniel León stated that the NIMD recommended greater representation in the oversight boards: “We don’t think that the National Congress acted on electoral reforms just because the international community has been asking for it. The Organization of American States and the European Union have recommended reforms since 2017. So has civil society, academia, private enterprise, and the public. What we have now is better than nothing.”
In Nasralla’s opinion, some substantive and positive electoral reforms were included in the second round of the proposed legislation, such as citizen control of the polling stations and allowing Hondurans living abroad to vote, but none of these were approved.
When asked about the U.S. Embassy’s tweet about the new electoral law, Nasralla said, “The U.S. is unaware of our problems and doesn’t understand many things because they have bigger problems. They think Honduras is just a big trash dump. This new law means that drug traffickers and thieves will be watching over the elections. Democracy in Honduras does not exist, and this is the way the Sinaloa cartel wants it. This cartel governs our country and they have Hernandez and his cronies play their little charade so that people believe there is democracy in Honduras. Libre and the Liberal Party are playing along with the National Party. I’m retiring from politics, but the party will continue without me. I will form alliances only if we are represented in the oversight boards.That’s my condition and what we’ve been discussing with the PINU party. But if we don’t get that representation, then alliances don’t make sense.”
The National Party will no longer control electoral institutions
Eugenio Sosa believes that the National Party has been weakened in the last few years, especially now that the electoral reforms have loosened the party’s grip on electoral institutions. “All this means that the National Party could end up losing the elections,” he predicted. Sosa believes that the electoral reforms benefit Libre the most. After being totally out of contention during the 2013 and 2017 elections, it now has a formal and important institutional role.
Asfura has a bigger fight on his hands than previous National Party presidential candidates, says Sosa, because his party doesn’t have complete control over the electoral apparatus. “Asfura has a certain charisma, but it doesn’t go over well with the rural population. He’s a man of few words, which somehow makes him vulnerable.”
*At the time of this writing, Salvador Nasralla was still considering political alliances, however none have been announced yet.