On September 7, the former president of Ecuador Rafael Correa was banned from running for office in the upcoming 2021 elections. Correa’s supporters (also known as Correístas) view the Constitutional Court’s decision as a threat to free and fair elections. Is it? Yes, but not for the reasons you think it is. The absence of a fair and independent court system frustrates the debate. The situation highlights the co-dependence of legal “justice” and democracy.
Free and Fair Elections?
This story has two critical points: the 2018 referendum and the 2020 conviction of Rafael Correa. A world without these two factors would result in Correa’s bid for office (again). Under these assumptions, understanding the motivations behind these two critical points is fundamental to assessing/predicting the quality of Ecuador’s 2021 elections.
Schumpeter defined democracy as “that institutional arrangement for arriving at political decisions in which individuals acquire the power to decide by means of a competitive struggle for the people’s vote.” Does this verdict hinder electoral competition? Dahl stated that democracy requires (almost) universal eligibility for public office; is Correa the exception to the rule?
Ex-President Correa has been found guilty of political corruption during his presidency in the so-called “Bribes Case,” along with 18 other actors. Most notably, he was charged with the 2012 attempted kidnapping of political opponent Fernando Balda. He was also accused of having illegally financed his campaign with more than $7.5 million in payments from private companies in exchange for public contracts.
In February 2018, Ecuador held a national referendum with seven questions submitted by current President Lenín Moreno. The two most notable were: (1) punishing those convicted of acts of corruption with their disqualification from participating in the political life of the country and (2) reinstating a two-term limit on some elected offices (including the presidency). Both received a majority of votes; 73.71% voted “Yes” on increasing penalties for public officials convicted of political corruption and 64.2% voted “Yes” on term limits. Why does this matter? Under these restrictions, ex-President Correa finds himself unable to run for political office for 25 years. Had this referendum not happened, Correa would be allowed to run today.
The Correísta Argument: “I do not believe they are seeking justice but rather revenge”
Correa’s supporters believe this decision is the product of a political conspiracy against Correa orchestrated by President Lenín Moreno. It keeps Correa from running as a candidate for vice president with political ally Andrés Arauz. Moreno, who was a member of the Alianza País party and Correa’s vice-president from 2007 to 2013, has not been tried or convicted for involvement in the alleged acts of political corruption.
The question ultimately boils down to: did Correa receive a fair trial? Did the justice system have enough evidence to convict? If the answer is yes, then he should not be allowed to run again. If the answer is no, then two things are true: (1) Correa should be allowed to run and (2) Moreno abused his presidential power (by politicizing the justice system).
Correístas see parallels between this judicial ruling and what occurred in Argentina and Brazil where the electoral contest was influenced by judges.
The Opposition: The Existence of a Structure of Corruption
State Attorney General Diana Salazar states: “Based on the testimonial, expert and documentary evidence presented, it was determined that there was a structure with hierarchical levels: leaders, coordinators and beneficiaries, which used coding and criminal jargon to the commission of the crime.” As the case prosecutor, she asked for the maximum jail time sentence of eight years.
The Referendum: The Will of the People?
Schumpeter avoids conflating the will of the majority with the will of the people; he argues that political leaders create “the will of the people” and their followers accept it. If it is in fact constructed, there is no inherent “will of the people.” If we accept Schumpeter’s account and apply it to the Ecuadorian context, we can interpret the 2018 Referendum as a product of Moreno’s political will.
This doesn’t necessarily invalidate the referendum’s results. In theory, banning people convicted of political corruption from the ballot seems “democratic.” In practice, this referendum only applies to a handful of Moreno’s political opponents. The political consequence of the referendum calls into question its objectivity.
The Conviction of Rafael Correa
Varol warns of the concept of stealth authoritarianism: the abuse of institutions in democratic societies to further anti-democratic ends. One of the mechanisms he identifies is the use of electoral laws. Evidence of stealth authoritarianism may include the enactment of electoral barriers to entry created to protect a political incumbent. In Correa’s case, should we consider this court decision to be a mechanism of stealth authoritarianism?
Here, the fundamental question is: was the justice system used as a political tool? If it was, then this election will no longer be free nor fair; without the candidacy of Rafael Correa, we no longer have a “competitive struggle for the people’s vote.” Sometimes, competition allows for a flawed candidate to win.
Answering this question objectively is not as easy as it seems; it demands that we separate from our existing biases on the presidency of Rafael Correa. We must forget about the decrease in poverty and increase in per capita GDP growth we saw during his tenure. We must also forget about his consolidation of power at the executive branch and his censorship of the media.
The decision to convict Rafael Correa and bar him from political office is a threat to free and fair elections if there was not enough evidence to convict him.
The ambiguity begs a question. If there is no objective judge or jury to rule on corruption charges, should the public decide? Are they in the best position to weigh the evidence? Is there a better alternative?