6. The Legal Framework of Peruvian Elections
i) The Constitutional and Legislative Framework
The constitution of 1993 and its electoral provisions
In view of the Latin American traditional prohibition of immediate re-election, the constitution of 1993 - still valid for the 2001 elections - allows two consecutive presidential terms (Art. 112); in this respect, it had introduced a significant shift towards strong powers of incumbency and self-perpetuation. The second major change provided for a new unicameral congress with a reduced number of deputies (120 instead of 180).
In electoral matters, the constitution has retained the majority runoff format in presidential elections but superseded a 1984 law by explicitly excluding spoilt and blank ballots in the calculation of a majority (these provisions are being debated and are under consideration for new constitutional amendments once the newly elected congress convenes).
Electoral participation as an obligation
Peru is one of the Latin American countries that have opted for mandatory electoral participation. The vote has been compulsory since 1931 (extended to women in 1955 and to illiterate persons in 1979, effective 1985). Abstention is subject to administrative penalisation and/or a fine, unless a case of justifiable exoneration (dispensa) can be proved (Art. 29 RENIEC ley 26497).
There are good reasons for such a regulation, as in a plural and socially divided society obligatory participation can constitute an integrating factor. Without it, the picture of voter participation in Peru would present wide regional (and ethnic) disparities, and political forces might then virtually limit their representation (and responsibilities) to the coastal urban populations characterised by acute political awareness and civic education. The danger would be that of ending up with a selective electoral regime. Over the years, the result of this Peruvian practice has been a relatively high participation quota of between 70% and 75%; in the present elections of 2001 absenteeism reached 17,7% in the first round.
The sanctions attached to voter abstention, however, are relatively burdensome: control is effected by means of a hologram sticker affixed to the identity card (DNI). Without this seal the DNI is simply an identity card without validity for legal transactions, whether public or private. If the individual wants to regain his legal standing, a fine is imposed ( amounting to one fourth of the current monthly minimum wage, currently S/. 120.-), 10% of which is passed directly, as "own revenue", to the treasury of JNE, and 40% to RENIEC (Art. 14 Ley JNE 26533; Art.380 LOE 26859).
The long-established principle of mandatory electoral participation is beyond the call of international observer teams. But the form and scope of sanctions probably ought to be reconsidered, as, in their present form, they place an unnecessarily high burden on the poorer stratum of the population.
Norms regulating the electoral process
The electoral process is regulated by a set of norms approved between 1995 and 1997 that have reformed the electoral legislation. The Organic Laws of the National Electoral Jury (Law 26486-LOJNE), of the National Office of the Electoral Processes (Law 26487-LOONPE) and of the National Record of Identification and Civil Status (Law 26497-LORENIEC), were promulgated in 1995 in accordance with the 1993 constitution. The constitution created a tripartite electoral organisation with two new organisms (ONPE and RENIEC) which have been assigned some functions formerly attributed to the JNE (for details see section 6.iii). Law 26859 (Organic Electoral Law - LOE) regulates the following: the electoral campaign; the voting procedures; the inscription of organisations and candidates; a just election and the electoral system in the case of presidential and congressional elections (they are carried out at the same time every five years).
Since 1995, in the General Elections for President and Congress a unitary ballot sheet is used.
It consists of a two-leafed form with the Presidential candidates' list on the left and Congress list on the right. One fold carries the logotype and photograph and the other shows the logotype and blank boxes for the preferential vote, which in this case it is arranged on the same line as that of the parties or groupings participating in both elections. The two parts are detached when the votes are counted, but during the voting process they form part of a single ballot sheet.
The age limits for compulsory voter participation of all resident citizens is fixed between 18 and 70 years of age, but not of course, the submission of a valid vote, as the vote is secret. A ballot sheet is considered valid if at least one of the lists, presidential or congressional, has been marked. It is not necessary to fill the blank boxes in favour of individual candidates for Congress. This implies that the "preferential vote" is voluntary; there are up to two preferential options.
The LOE also stipulates the equally mandatory vote for Peruvian residents abroad. In these cases, voting is carried out through consular offices or by mail. This is the only legally foreseen case in which voting can be made by mail. Those who reside in Peru are to exercise their voting right in person at a Polling Station at the location of their permanent residence.
Legal provisions are made for cases of temporary residence away from home, but there are limitations that have had the effect of excluding numerically important sectors of the population from voting. Legally, temporary residents' polling stations (Mesas de Transeúntes / MS) ought to be set up. Applications for the entry in the respective list, however, have to be submitted not less than 90 days prior to the election date, a long period which excludes many voters who are not used to long-time planning as for their civic obligations. What is more, for the current General Elections, the unitary district system for President and the multiple district type for Congress were used (on the same ballot sheet). In theory, a temporary residents' vote is provided for the former but not for the latter. However, once the ballot sheet is unitary, a temporary residents' vote for president is no longer possible. As a consequence, no mesas de transeúntes were provided during both rounds of the 2001 vote. In particular, rural migrants with recently established and often "informal" residence in the coastal urban areas were reduced to costly journeys to vote in their hometowns. Under these circumstances, a substantial, if statistically uncertain part of the population have abstained, i.e. in fact been excluded from the elections in addition to being subjected to substantial fines (S/. 120.-).
ii) Electoral rights and discriminations
In Peru, universal suffrage is, according to the Constitution, the right of all citizens to political participation, men or women, without any type of discrimination. Nevertheless, reality does not always fully respond to this principle. We will not deal with social and economic discriminations, which are very obvious, but only with those concerning specific legal ordinances regulating the electoral purposes.
Women
As for women, they enjoy fully equal participatory rights and obligations, and indeed they have shown equitable presence in the voting process and a notable representation in the composition of the staff of polling stations. Their participation is less in representative institutions and in the leadership of political parties. Lourdes Flores Nano, candidate to the presidency for Unidad Nacional, came in third in the elections, but she did not emphasise the gender issue during her political campaign. To enhance the "institutional presence" of women, a minimum quota of thirty-percent participation per gender was legally established for the list of congressional candidates. Women's participation did not always manage to fill this quota. In some cases - in Departments with short lists of candidates - the JNE has interpreted this rule in a restrictive way, regarding one female candidate on a list of four to be in accordance with the law, and this despite a contrary opinion issued by the Defensoría and several women's' organisations. The results were not impressive. Out of the 120 seats in Congress, women achieved only 22,18%, which is a lower number than was gained in the last elections of 2000.
Disabled persons
The electoral administration made special facilities available to blind and disabled persons. The endeavours of ONPE to enable disabled people to exert their rights to vote were remarkable. In polling stations observed by the Mission, special preparations had been made to facilitate the access for disabled persons. Furthermore, instructions and materials concerning this issue were distributed, including ballot sheets in Braille for the blind. The Mission considers the decisive effort to guarantee disabled persons their political rights, specifically that of universal suffrage, a success that can serve as a model for other countries.
Temporary Residents
As already pointed out in the present report (see: 6.i / The Constitutional and Legislative Framework) the existing legal provisions for temporary residents have not been applied for the general elections either in 2000 nor in April and June 2001. This has the effect of excluding a considerable part of Peru's significant number of "new settlers" or migrants from voting, or subjecting them to prohibitive expenditures or fines.
Armed Forces and National Police
With regards to the military and their rights, it must also be pointed out that members of the Armed Forces and the National Police do not have the right to vote or present themselves for elected positions.
Libreta militar
Even though the military service is no longer obligatory, 17-year old boys and girls must obtain the libreta militar (military registration card). In the case of young people of rural extraction, failure to show the above mentioned document to the armed forces could end up in a levy by the militia.
Persons affected by antiterrorist legislation
Antiterrorist legislation initiatives of the Fujimori period have left some discriminatory situations as far as electoral participation is concerned. Legal amendments to remedy this situation were taken just a few days after the second electoral round (June 2001). Before, the judiciary was obliged to issue arrest warrants to anybody accused of having participated in terrorist acts, without previous habeas corpus or the right to a defence lawyer. Persons with these warrants pending were excluded from voting or upon doing so, were immediately arrested, even though the electoral law expressly provides a truce on polling day. The armed forces consider antiterrorist war an exception to this rule.
Persons under criminal accusation
There is also electoral discrimination against persons held for trial as they are prevented from participating in elections. They are not provided with a leave to vote nor are polling stations set up in the prisons. We are only dealing with the issue of persons held for trial, as the enactment of a sentence legally divests persons of their citizen's rights. Persons who have served their sentence find it difficult to participate in elections because their documents are withheld for a period of time by the penitentiary administrations.
Indigenous peoples
Also to be considered is the situation of both peasant and native communities. They are in all respects to be considered full citizens that exercise their right to political participation. However, due to the poor attention given by the established system to the pluralism of cultures and languages, these citizens are often excluded and discriminated.
Major deficiencies are found with regards to the electoral roll (Padrón Electoral) and the issue of identification papers in remote peasant and native communities. Nor is the appropriate electoral training provided in terms they can understand and benefit from. Polling Stations are not set up in a great number of far-removed communities and there are some to which even the electoral administration has no access.
Even though the plurality of languages is acknowledged in the Constitution, electoral material and the identification of political parties and groups must be in Spanish. In view of these circumstances and in accordance with the Convention of the International Labour Organisation concerning Indigenous and Tribal People in Independent Countries, the DP considers that electoral organisations should act in co-ordination with the indigenous authorities.
Possibilities of recourse in human rights matters
The Constitution considers the JNE as the unappelable supreme jurisdiction in electoral matters; but after all, political participation does form part of human rights. Thus, should complaints arise supported by international human rights provisions, they can be brought before higher instances such as the Inter-American Court of Human Rights and the United Nations Human Rights Committee on Human Rights, as Peru has ratified the International Agreement on Civil and Political Rights.
iii) The Structure of the Electoral Administration
Under the Constitution, three electoral institutions are responsible for ensuring the safe and free organisation of elections and vote tallies without undue influence and fraud. They have technical autonomy and are required to co-ordinate on electoral matters.
1. The National Identity and Civil Status Registry (Registro Nacional de Indentificación y Estado Civil / RENIEC, created in July 1995), with 176 offices in the provinces, is responsible for the countrywide registration of births, defunctions and marriages and beyond this is responsible for preparing the electoral roll (Padrón Electoral). RENIEC has succeeded in making the switch from old style voting cards to multiple purpose ID Cards (DNI) with top-notch international digital safety specifications, and to the point of having equipped (by end February 2001) 59.7% of the potential voters with these documents (8.9m of 14.9m registered voters). Voter identification in Peru has progressed and been refined to the point that this aspect can be considered as essentially solved, so that falsification or misuse of voting cards ("cédulas") as in the 2000 elections can be virtually precluded. Voter registration itself, however, is still not entirely error-proof, given the often incomplete data on defunctions, births, etc., especially in the rural areas.
2. The National Jury for Elections (Jurado Nacional de Elecciones / JNE) is the highest-ranking organ and instance of last appeal within the electoral administration; it encompasses normative as well as jurisdictional functions. JNE is in charge of supervising the legality of the ballot, of electoral processes, of referendums and similar popular consultations. It has the supreme responsibility for overseeing the electoral process and is in charge of the administration of justice on electoral matters; its decisions are not open to appeal nor may be challenged in the courts. JNE also keeps the national registries of political organisations, registers candidates for elections and has the authority of proclaiming the definite results. For each election, JNE sets up a network of 49 Subsidiary Electoral Tribunals (Jurados Especiales Electorales / JEE) in the provinces which deal with challenges. All appeals against these decisions are passed to the JNE, which issues unappealable rulings that may even partially or totally annul an election. JNE has the executive right to propose new legislation on electoral matters. The JNE is in essence a panel of five members, one of whom is elected by the Supreme Court and assumes the position of President of the JNE. The other four members are nominated by the board of prosecutors-general, the Lima Bar Association and the deans of the public university law schools and the private university law schools. Four of the board members were only recently replaced, because they appear to have been implicated in old-regime irregularities. The measures restricting the powers of JNE introduced by the Fujimori government in 1997 and 1998 (essentially: reduction of quorum and of the voting majority from 3 to 4 members) have since been abrogated.
1. The State Office for Electoral Processes (Oficina Nacional de Procesos Electorales / ONPE) has the function to organize and implement the elections, including the preparation and distribution of ballot sheets and related voting materials. It carries out the ballot count and provides from the start of that process permanent information of the tally at polling stations. In its new form, ONPE has become operational as late as mid-December 2000. According to the new electoral law, ONPE is responsible to operate 94 regional headquarters (oficinas descentralizadas de procesos electorales / ODPE) and to set up the roughly 95 000 voting stations (mesas de sufragio); ONPE is making great strides to solve its numerous problems, and for this purpose it has counted on important contributions of international technical and financial co-operation. Serious staffing problems have plagued the administration up to polling day in April; they were due to the fact that about 78% of all staff have had to be replaced for their political affiliation with the old regime. Recruitment of new staff was complicated and lagging behind schedule. More than for the core staff at the Central Office, this applies to the temporary positions on the local and regional levels who are necessary to ensure orderly voting procedures at the grassroots (this pertains to the ODPE chiefs and roughly 11,000 co-ordinators, each for ten mesas, recruited on a three-month basis at a salary of S/. 2,000). 28,000 applications had been received for these posts, as short-time employments are highly attractive under the present social conditions in the country; however, only one third of them have had the qualifications to pass the screening process.
iv) Procedural provisions for the elections
The amended package introduced into the electoral law (LOE) by Congress, 29 December 2000, maintains the division of the country into 25 electoral districts (equivalent to the administrative departamentos plus the special district of Callao). The number of polling stations is flexible according to local conditions; approximately 92,000 polling stations (mesas) were set up for the 8 April/3 June elections, usually a number of them grouped together in polling centres (colegios). The countrywide voters' register for the election in April 2001, as approved by JNE (17 January 2001) showed a population entitled to vote of 14,906, 233 persons.
Each of the mesas handles an upper limit of 200 voters and is staffed by three mesa members. The selection procedure for this staff is somewhat obscure; from the voters' registry (200 voters) for each mesa, a selection of 25 persons, supposedly with a minimum educational qualification is made, among whom then the selection of 3 titular and 3 substitute members is made by draw (sorteo). In practice, this Peruvian system has been having the effect of a consistently high number of the chosen mesa staff not showing up to take up their position on voting day, oblivious of the fines set for such behaviour. In such situations, the local electoral administration and the counting process are considerably weakened or hampered.
The three electoral agencies described above (section 6.iii) share the functions of electoral organisation in a way that can be summarised as follows:
In the electoral system, JNE rules, ONPE organises, and RENIEC assembles. The second prevails for operational purposes while JNE makes the final decisions on strictly electoral issues. According to CPP, JNE judges appeal cases "with a conscientious criteria", and there is no need to resort to either the Supreme Court (CS) or the Constitutional Court (Tribunal Constitucional/TC). The latter, TC, only has jurisdiction in competence conflicts among electoral institutions. The Supreme Court has jurisdiction over electoral offences on the basis of the penal law. Institutionally, electoral results depend on the ONPE vote count and JNE's supervision.
The relationship between JNE and ONPE constitutes one of the sensitive aspects of the entire system. Due to the jurisdiction and supervision of the first, one might interpret this in terms of a degree of autonomy equivalent or similar to that, which should constitutionally exist between the judicial and the executive branch, but this is not the case. The LOE postulates that the relationship between the electoral institutions is to be of "co-ordination and co-operation", both on the general and the departmental level. This regards the relation between JNE and ONPE as the one between the various JEE and ODPE on the regional level, without any detailed differentiation for the respective supervision.
It can therefore be said that the present arrangement is that of an institutional system that, due to its complex mix of autonomy and subordination between the main administrative bodies, is basically one of supervision but with an insufficiently defined division of competence, which leaves loopholes and undefined, contentious areas.
Particular attention is given in the amended LOE to the role of party representatives (personeros de partido) whose functions are defined as to "fiscalizar" (i.e. scrutinise/investigate) the election. No more than one personero from each political party may be present at each polling station during the proceedings at the count. In practice, the personeros' role has presented some problems, a matter to be discussed in a different context on the basis of electoral observations.
Party Financing and Campaign Funding
Over the last two decades, the formerly existing Peruvian party spectrum, with the notable exception of the APRA party, has disintegrated into personalistic splinter groups and loose ad hoc alliances. Be it the cause or the consequence of this development - no Law or Political Parties exists, and no public funding is provided for them, although the 1993 constitution (Art. 35) states that "the law (will establish) norms to assure the democratic functioning of political parties ...".
Party membership fees are of minimal importance, as political organisations generally lack the necessary permanent organisational base. Therefore, party and campaign resources are generally provided by private funds, which are subject to specific interests when helping to finance candidatures and programs. At election time, funding becomes suddenly visible and suspiciously abundant, particularly in favour of the political forces deemed to have high probabilities of winning the election. No public control of the financial situation and sources of funding is provided. But, after the experience of the Fujimori elections in 2000, two initiatives were introduced as first steps to render a certain degree of transparency to political financing:
1. To put all political groups on a "minimally equal footing" during election campaigns, a cost-free, state-financed TV frame for campaign propaganda is provided to all lists competing in the election (see details, section 6.v); and
2. in an attempt to finally put in practice a legal provision established in 1997 (LOE, Art. 183) the JNE pressed the point that campaign expenses had to be at least "monitored". This refers to the legal requirement of documenting party sources of financing, and their campaign expenses by sworn statements to be presented to JNE within 60 days before the end of the campaign.
As the legislature omitted to set any sanctions for cases of non-compliance, the results of the latter provision have been more than unsatisfactory. During the 2001 campaign, none of the 13 political groups in the electoral race have respected the 60-day legal deadline, and at the end of the campaign, four major party statements were still missing. What is more important, most accounts proved to be sketchy and inadequate as to the financial sources.
In order to put the political groups under some pressure, JNE resorted, in mid-March, to an agreement with Transparencia to set up a verification procedure, inspecting and comparing obvious campaign outlays (press advertisements, radio and TV spots, etc.) with declared financing. Given the wide "grey areas" in funding, the procedure could not lead to a full disclosure, but it did help to give the public an idea where most of the campaign money had ended up.
Electoral observation was initially opened by JNE to domestic non-government Organisations like Transparencia and Consejo por la Paz. International observation is not formally provided for by law, but it is generally been understood as to be allowed by implication, taking into account invitations and official accreditation extended by the Peruvian authorities, both in the year 2000 and for the present elections. Participation of non-Peruvian citizens is also allowed in domestic observation teams. The general acceptance of international observation missions by government and the public in Peru is also reflected in the Ombudsman Report issued soon after the first round of the 2001 elections: "The latter (domestic and international electoral observation organisations) have become an important mechanism in mitigating the possibility of irregular acts on the part of the contenders or electoral entities officials".
A legal debate about the constitutionality of publishing poll results early on voting day broke out during the election campaign in March. Interested political circles, which were later joined by Transparencia, the OAS Head of Mission, the Ombudsmen Office, and eventually also by the JNE presidency, came to advocate the abrogation of the legal provision (amended Art. 121 LOE) adopted only recently (November 2000) by Congress. At the time, this clause was deemed necessary to protect the public climate on voting day from undue interference and manipulations. Now, surprisingly, convictions had changed, and only the Congress directorate tried to uphold the legal clause. The matter finally reached the Constitutional Tribunal, which, just in time before the polling date emitted its verdict to allow for early publication of poll exit data (i.e. after closure of all mesas at four p.m.).
v) Media Laws and Regulations
The Peruvian Constitution (Art. II, 4) contains a general guarantee of freedom of information, opinion, expression and diffusion of thinking through the media without previous authorisation or censorship.
The Election Law (LOE) regulates electoral propaganda in articles 181-195.
1. Art. 186 (d), states the right to freely publish propaganda in the different mass media, under equal conditions for all parties and candidates.
2. Art. 190, states that 24 hours before election day, all kind of electoral propaganda has to be suspended.
3. Art. 192 (modified by the Law n. 27369, 18 XI 2000), prevents the "State" (i.e. the executive and governmental agencies) from pronouncing themselves in favour or against any of the parties, alliances or independent groups; this takes effect with the official summons for the elections.
4. Art. 194 (modified by the Law n. 27369, 18 XI 2000), establishes the so called franja electoral, free air time dedicated in equal part to all competitors in the electronic media, both private and state-owned (with nation-wide coverage). The same article also contains the only part of the Law referring to information broadcasts that cannot be considered as political propaganda: "The publicity, information and political programs of radio stations and TV channels will respect the principle of non-discrimination and will grant special rates to all participating political organisations".
From the limited range of these legal provisions, it seems obvious that the policies and behaviour of the media during electoral campaigns are practically left unregulated. The principle of non-discrimination only implies the right for all competitors to have access to the media, but does not constitute a right to be equally represented (from quantitative and qualitative point of view) in the media. It might be considered whether this principle of representation under equal conditions should be legally guaranteed, along with the institution of an independent body in charge of permanent media monitoring (as the NGO Transparencia did during these elections).
Franja electoral (spots of electoral publicity in public TV)
The franja electoral was approved by the JNE under the Resolution n. 065, published in the Gazeta Oficial (19 January 2001). According to this resolution, the political groups have at their disposal 10 minutes daily in the TV and radio Channels, both private and state-owned, with nation-wide coverage. In this cost-free space, effective from 60 days before the Election Day until 24 hours before election date, the parties are allowed to transmit informative spots in the form and with the content they desire. If a political group does not submit any material to TV or radio channels, ONPE covers the space with neutral institutional and voters' education videos. The Law includes in the franja electoral only radio and television, but not the printed media, thus directing state resources only toward one part of the media, and, by implication, limiting the parties' free choice of the medium of their preference.
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