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Zelaya Wins, Honduras Loses (Updated Nov. 4)

Due to tremendous pressure applied by the United States Department of State, Zelaya is on the road to reinstatement as president of Honduras.

by
Dan Miller

Bio

October 30, 2009 - 6:08 pm
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Update No. 3, November 4

No decision yet, and it seems unlikely that Zelaya will be reinstated by his deadline, November 5

According to this article from a newspaper in Chile, OAS Secretary General Insulza stated that Zelaya must be reinstated. Insulza is quoted as saying:

“The only solution is to restore peace to the President (Manuel) Zelaya for the short time he has left in office.” He urged the Honduran Congress to “cease the rhetoric” and to get on with the reinstatement of Zelaya.

President Micheletti’s negotiating team has politely asked Insulza to butt out.

As noted in la Gringa’s blog:

Let’s just admit that the Guaymuras-Tegucigalpa-San José dialogues were a fraud. There is no “Honduran solution” to the Honduran problem. A Honduran solution will not be allowed and there is soon to be no Honduran sovereignty.

As I predicted, the development of a Honduran solution was only going to be allowed if the Honduran solution was the solution that the “international community” demanded.

Despite this rather pessimistic view, the National Congress has decided to wait to hear the views of the Supreme Court before deciding whether to reinstate Zelaya:

A board of 13 top lawmakers met and decided not to call a special session of Congress, currently in recess, until they receive non-binding opinions from the Supreme Court and the attorney general.

No timeline was established for a vote, throwing fresh uncertainty over the implementation of a U.S.-brokered deal signed last week to end the worst political upheaval in two decades in Central America.

Ricardo Lagos, one of the members of the Credentials Committee, is quoted as saying:

What we are trying to implement is an agreement that means that President Zelaya has to be returned to power and at the same time to make sure that the elections, the presidential elections, are going to be fulfilled in a democratic way on November 29.

That is not my understanding of the accord, as noted in the October 31 update to the article. According to the Panamanian newspaper la Prensa, only three of the thirteen-member group of congressional leaders voted to have the Congress decide immediately on Zelaya’s reinstatement. The three members also lost in their attempt to have a deadline set for the vote.

The Wall Street Journal reports that there may be no Congressional vote on Zelaya’s reinstatement until after the November 29 election, since the Congress is awaiting reports from Honduras’s Supreme Court, attorney general’s office and other institutions, and has set no deadline for when the reports must be received:

Even if Mr. Zelaya pulls out of the U.S.-brokered deal, the interim government appears to have the upper hand. In announcing the deal, the U.S. made clear that it would respect any decision by the Honduran Congress, and would recognize the November elections even if Congress blocks Mr. Zelaya’s return.

That may cause some friction with other countries in Latin America. Since the signing of the agreement, the Organization of American States and some Latin American countries have appeared to condition their support of the Honduran election on Mr. Zelaya’s return to power.

While many interpreted the deal last week as a sign Mr. Zelaya would return to power, Honduran politicians appear in no mood to change their vote from June 28, when they overwhelmingly voted to replace the president. With the election little more than three weeks away, analysts say neither side wants to risk losing votes by reinstalling a controversial president.

“Zelaya is the kiss of death,” says Miguel Angel Calix, a Honduran political analyst.

Honduras’s rival political factions disagree on what the deal was meant to achieve. Mr. Zelaya says he will consider the deal broken if he isn’t reinstated by Thursday. But the agreement itself offers no guarantee of reinstatement.

Things seem likely to become more contentious over the next few days.

Update No. 2, November 2

Although former Honduran President Zelaya has stated flatly that the purpose of the accord is his reinstatement as president, and that if it does not occur by November 5 the accord will have been violated, an article in the Honduran daily newspaper el Heraldo today stated (Google translation):

The Secretary of Political Affairs of the Organization of American States (OAS), Victor Rico, flatly told The Associated Press that “there is no deadline to restore power to Zelaya.”

He said that “according to concerted negotiations to resolve the political crisis in Honduras, there is no deadline for Zelaya to return the office because Congress is the only institution empowered to [make that] that determination.”

He stressed that “Congress is sovereign, and neither the OAS nor anyone else, [including] someone from outside of Honduras, can impose a time limit on Members, who will analyze and evaluate the matter as they have because that is not stipulated in the Agreement itself.”

Mr. Rico is a citizen of Bolivia. In May of 2009, he was appointed as the OAS Secretary for Political Affairs.

According to the same newspaper, the U.S. Consulate in Honduras has resumed the issuance of visas, and the president of the Supreme Audit Court (TSC), Renan Sagastume, has stated that criminal proceedings against Zelaya for both political and criminal crimes will resume as soon as a decision is made concerning his reinstatement. However, he stated that “[If] Mr. Zelaya is restored or not restored, does not matter because it is the fulfillment of our duties and no government body that we could prevent the Court to continue its work.”

According to another Honduran newspaper, la Tribuna, the National Resistance movement has stated that its boycott of the November elections and the distribution of propaganda will continue until Mr. Zelaya is reinstated.

La Gringa’s Blog provides an informative update as of November 1, and cites several news reports to the effect that Mr. Shannon secured Zelaya’s agreement to the accord by threatening that otherwise Mr. Zelaya’s son, presently in the United States, would be prosecuted for drug trafficking. She states that:

Zelaya has already made it crystal clear that he has no intention of abiding by the Guaymuras Accord unless it results in his restitution to office. As a result, despite the agreement, nothing has really changed. In or out of office, Zelaya will continue to try to destabilize the country with the help of his followers.

Zelaya continues to maintain that “If the coup d’état is not reversed, then the accord is going to break down, the accord would be null and the accord logically would be an absurdity” and that his reinstatement must be accomplished by November 5, the date for the establishment of the Government of Unity and National Reconciliation.

Update No. 1, October 31

The Republic of Panama has reestablished diplomatic relations with Honduras and will provide observers for the upcoming elections.

A Google translation of the text of the accord is available courtesy of el Tiempo, a Honduran daily newspaper.

Much of the accord is flowery boilerplate language and much is ambiguous. Three sections in particular bother me because they are too ambiguous for me to understand.

According to Section 5:

To achieve reconciliation and strengthening democracy in the spirit of the themes of the proposed San Jose Accord, both negotiating committees have decided, respectfully, that the National Congress as an institutional expression of popular sovereignty, using its powers, in consultation with relevant bodies to consider as the Supreme Court and in accordance with law, resolve as appropriate in respect of “to roll back the ownership of the executive branch to its status prior to 28 June until the end of the current governmental period on 27 January 2010.”(emphasis added)

The decision to accept the Congress should provide the basis for achieving social peace, political peace and governance demanded by society and the country needs.

This may mean that the Congress has plenary power to decide on Zelaya’s reinstatement, “as appropriate,” in consultation with the Supreme Court and on the basis of the Honduran law and Constitution. Or, it may mean that it can “roll back” things to the status quo ante as of July 28, the day when Zelaya was flown out of the country, and if he was not, in fact, the president as of that June 28, then it can’t roll things back to a prior date when he was. There is no deadline for the Congress to act, and I understand that it is in recess until after the November 29 elections; it may, of course, be called back for a special session.

There is a question whether Zelaya was still the president on July 28.

Article 239 [of the Honduran Constitution] specifically states that any president who so much as proposes the permissibility of reelection “shall cease forthwith” in his duties, and Article 4 provides that any “infraction” of the succession rules constitutes treason. The rules are so tight because these are terribly serious issues for Honduras, which lived under decades of military rule.

It would certainly be reasonable to contend that Zelaya had “immediately” forfeited the presidency no later than:

On June 25 — three days before he was ousted — [when] Zelaya personally gathered a group of “supporters” and led it to seize the ballots, restating his intent to conduct the “survey” on June 28. That was the breaking point for the attorney general, who immediately sought a warrant from the Supreme Court for Zelaya’s arrest on charges of treason, abuse of authority and other crimes. In response, the court ordered Zelaya’s arrest by the country’s army, which under Article 272 must enforce compliance with the Constitution, particularly with respect to presidential succession.

If the Supreme Court advises the Congress that Zelaya had ceased to be the president on or before June 25, and the Congress agrees to “roll back” the situation to June 28, then he could not only be denied reinstatement, he could be arrested and tried for treason.

My guess is that the Congress will do whatever it wishes, and that the Supreme Court’s opinion on the matter will not be considered binding. Section 5 is arguably subject to that interpretation.

Section 8 is also troubling. It provides:

Any differences in interpretation or application of this Agreement will be submitted to the Credentials Committee, shall determine, in keeping with the provisions of the Constitution of the Republic of Honduras and current legislation and by an authentic interpretation of this Agreement, the solution appropriate.

Taking into account this Agreement is the product of understanding and brotherhood among Hondurans, strongly request the international community to respect the sovereignty of the Republic of Honduras, and fully observe the principle enshrined in the Charter of the United Nations not interference in the internal affairs of other States.

Under Section 6:

The commission shall consist of two members of the international community and two members of the national community, the latter shall be chosen one by each of the parties.

The Credentials Committee will be responsible for attesting to the strict compliance with all points of this agreement and will receive for it the full cooperation of the Honduran public institutions.

The representatives of the “international community” seem likely to continue to side with Zelaya, and it seems likely that at least one of the remaining two members of the Credentials Committee will also side with Zelaya — even though they are required to act “in keeping with the provisions of the Constitution of the Republic of Honduras and current legislation.”

Section 1 of the accord establishes a “Government of Unity and National Reconciliation,” no later than November 5 (per Section 9). Its function is:

To achieve reconciliation and strengthen democracy under a Government of Unity and National Reconciliation, composed of representatives of various political parties and social organizations, recognized for their ability, honesty, competence and willingness to talk, who will occupy the various secretaries and deputy secretaries, and other state agencies in accordance with article 246 and following of the Constitution of the Republic of Honduras.

Article 246 provides:

The Secretaries of State are organs of the general administration of the country, and depends directly on the President of the Republic.

The Law will determine their number, organization, competence and operation, as well as the organization, competence and operation , as well as the organization, competition and functioning of the Council of Ministers.

It will be interesting to see how the members of the Unity Government are selected and who will be the president of the republic upon whom they are to “depend.” Unity governments are unusual in a country with three branches of government, where the president has specified powers, the Supreme Court has specified powers, and the Congress has specified powers. Honduras, unlike Britain for example, does not have a prime minister who can preside over a coalition government (cabinet) until he forfeits his coalition and it becomes necessary to declare an election which may result in a new coalition.

On other points, the accord seems to be reasonably clear. The parties have agreed that there will be no further efforts to amend the Constitution impermissibly (Section 2), as Zelaya did in the month or so preceding his ouster.

A “Truth Commission” will be established to determine what caused the disputes leading to Zelaya’s ouster and to suggest ways to prevent any recurrence. Perhaps somewhat ambiguously, the accord states that “the next government, as part of a national consensus, constitutes the Truth Commission in the first half of 2010.” My take is that this is basically a cosmetic thing; the next government will select the members of the commission following the inauguration of the new president in January. It will probably have little if any practical significance, other than perhaps to try to put the actions of the pro and anti Zelaya groups in the best possible light in order to encourage Honduras to move forward.

My sense is that getting on with their lives is the goal of most Hondurans, and if the Truth Commission contributes to the process, good. Unfortunately, there are some in Honduras who want to keep up the “resistance,” and whatever the Commission says may wind up being contentious.

Still, the Truth Commission is several months away and if things move along peacefully through the end of this year,

Here is an interesting perspective on what’s going to happen. The upshot is, “one never knows what surprises are in store.” That’s clearly true in the present context.

——–

October 30
In its continuing efforts to denigrate constitutional government and the rule of law, the State Department — represented by Mr. Thomas Shannon, the U.S. assistant secretary of state for Western Hemisphere affairs — has forced an agreement on the Honduran government which may or may not result in reinstatement of former President Manuel Zelaya.

Although the formal text of the agreement has not been released, it appears clear that the question of his reinstatement will be submitted to the Honduran Congress and that the Honduran Supreme Court will have a voice in the matter. According to Fausta’s Blog, the eight points of agreement (her translation) are:

1. The creation of a reconciliation government.
2. Rejection of political amnesty.
3. Recognition of the November 29 elections.
4. Transferring control of the Armed Forces from the Executive to the Supreme Electoral Tribunal.
5. Creating a verification commission to enforce compliance with the agreement.
6. Creating a truth commission to investigate the events before, during, and after June 28, the date of Zelaya’s removal.
7. Requesting that the international community end all sanctions against Honduras and that they send in observers to the presidential election.
8. Supporting the proposal for a vote of the National Congress with the approval of the Supreme Court of Justice to reinstate all the Executive Power prior to June 28, that is, restoring Zelaya to power.

Four points remain to be considered, possibly on October 31.

The eighth point is the major point agreed upon, but it is unclear when or under what constraints the National Congress will vote. The lack of clarity will continue at least until the official text is released. Based on the unofficial translation provided above, Zelaya’s people and the Honduran government are to “support” a vote at the Congress “to reinstate” Zelaya — as distinguished from “on whether to reinstate Zelaya.” Does this mean that they are all required to “support” a vote in favor of Zelaya’s reinstatement or just to support having the Congress vote? There seems to be even less clarity on whether they are to “support” Supreme Court approval of reinstatement should the Congress vote for it and whether the Supreme Court or the Congress is to have the first say.

Here is a slightly modified Google translation of a statement by President Roberto Micheletti, with the Spanish text included in italics. The Google translation had to be modified slightly because it was in a few respects incorrect or less clear than the Spanish text:

“My government has decided to support a proposal to allow a vote in Congress with a prior opinion of the Supreme Court,” the president said.

“Ya no hay problema porque hemos decidido que si procede o no (la restitución) lo debe decidir una institución competente del país; nosotros decíamos la Corte, ellos el Congreso; ahora le aceptamos: bien, vamos al Congreso,” manifestó Arturo Corrales, miembro del equipo de Micheletti.

“Now, there is no problem because we have decided that whether or not there should be a reinstatement must be decided by a competent institution of the country. The Court will tell us, as well as the Congress. Now we accept; fine, let’s go to the Congress,” said Arturo Corrales, Micheletti team member.

“No obstante, las instituciones del Estado, incluida la Corte, harán sus informes previos al Congreso,” precisó.

“Nevertheless, state institutions, including the Court, will make their previous reports to Congress,” he said.

This suggests that the Congress will act after the Supreme Court gives approval. It also suggest that whether Zelaya is to be reinstated will be up to the Congress, probably subject to whatever the Supreme Court may have said. President Micheletti’s understanding of the accord may be different in significant respects from Mr. Zelaya’s.

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